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THE  UNIVERSITY 
OF  CALIFORNIA 

SANTA  BARBARA 

PRESENTED  BY 


MONROE'S  DIGEST 

OF 

STANDARD  DECISIONS 

OF 

THE  COURTS  OF  LAST  RESORT 

OF    THE 

United  States,  Canada,  England,  Scotland  and  Ireland, 

UPON  QUESTIONS  IN  LAW  AND  EQUITY  RELATING  TO 

BANKS,    BANKING,     COMMERCE,    TRADE 
AND    MANUFACTURING. 


EDITED  BY 


JAMES   H.    MONROE, 

J  \> 

Counsellor-at-Law. 


The  Courts  have  held,  that  "  There  is  no  protection  for  the  rash  against 
the  consequences  of  their  imprudent  contracts." 

Ignorance  of  the  law  is  not  accepted  as  an  excuse  for  errors  or  omissions. 

PRICE,    FIVE    DOLLARS. 


COPYRIGHT  1897,  BY  J.  S.  OGILVIK  PUBLISHING  COMPANY. 


NEW  YORK : 

J.  S.  OGILVIE  PUBLISHING  COMPANY, 
57  ROSE  STREET. 


PREFACE, 


The  author  has  sought  to  form  a  comprehensive  and 
concise  compilation  of  the  standard  decisions  of  the  Courts 
of  final  resort  relating  to  questions  daily  arising  in  the  busi- 
ness relation  of  all  branches  of  human  endeavor.  All  busi- 
ness men  can  refer  to  these  decisions  with  confidence  as  a 
guide  in  all  their  respective  dealings. 

The  precise  manner  in  which  these  important  decisions 
are  expressed,  enables  the  reader  to  gain  a  clear  and  com- 
prehensive understanding  and  application  of  the  imperative 
rules  of  law  that  are  made  to  govern  the  business  operations 
of  man,  in  the  various  departments  of  human  effort.  They 
also  enable  those  acting  under  them,  not  only  to  protect  and 
promote  their  own  personal  interests,  but  they  will  aid 
greatly  in  diminishing  the  perpetration  of  fraudulent  trans- 
actions, by  reducing  the  opportunities  for  committing  them. 

Everyone  who  issues  or  receives  checks,  drafts  and  prom- 
issory notes,  or  make  contracts  of  any  kind,  will  find  that 
the  Digest  is  well  calculated  for  aiding  them  to  protect  their 
rights  and  prevent  wrong  doing. 

A  ready  and  trustworthy  means  of  acquiring  a  knowledge 
of  the  rules  and  regulations  established  by  law,  will  not  only 
frequently  prevent  present  expensive  litigation,  but  will  also 
enable  one  to  create  a  practical  basis  of  action,  upon  which 
your  attorneys  can  more  effectively  defend  your  rights  and 
promote  your  interests.  If  you  fail  to  manage  your  business 
affairs  in  conformity  with  these  established  rules  and  regula- 
tions, to  which  you  are  amenable  always,  your  lawyer,  let  him 
be  ever  so  capable  and  energetic,  cannot  maintain  your  rights 
or  promote  those  interests  which  you  may  have  neglected  or 
endangered,  either  through  carelessness  or  a  want  of  legal 
information. 

JAMES  H.   MONROE. 


DECISIONS. 


ABATEMENT  AND  REVIVAL. 

1.  The  revival  of  an  action  does  not  necessarily  carry  with  it  the 
whole  of  the  prior  right  of  action.     Cregin  v.  Brooklyn,  C.  T.  R.  R. 
Co.  83  N.  Y.  595. 

2.  An  action  abates  when  it  is  defeated  and  the  legal  power  to  con- 
tinue  it  has  terminated.     Frost  v.  Kopp,  Civil  Procedure,  New  York 
City. 


ACCEPTANCE. 

3.  Verbal  acceptance  of  an  order  drawn  on  a  party  is  binding  on 
him,  and  his  statement,  when  presented  with  the  order,  that  he  could 
not  then  pay  it,  but  would  pay  the  same,  is  equivalent  to  an  accept- 
ance.    St.  Louis  National  Stock  Yards  v.  O'Reilly,  et  aZ.,  85  111.  546. 

4.  An  acceptance,  to  be  binding,  must  in  every  respect  meet  and 
correspond  with  the  offer  made  ;  neither  falling  within  nor  going  be- 
yond the  terms  proposed,  but  exactly  meeting  them  at  all  points,  and 
closing  with  them  as  they  stand.     A  proposal  to  accept  an  offer  on 
terms  varying  from  those  proposed  amounts  to  a  rejection  of  the  offer, 
and  a  substitution  of  a  counter  proposition,  which  cannot  become  a  con- 
tract until  assented  to  by  the  first  proposer.     The  original  offer  loses 
its  vitality,  and  is  no  longer  pending  between  the  parties,  and  becomes 
an  open  proposition  again  only  when  renewed  by  the  party  who  first 
made  it.     The  party  submitting  a  counter  proposition,  cannot,  without 
the  consent  of  the  first  proposer,  withdraw  or  abandon  the  same,  and 
then  accept  the  original   offer  which  he  has  once  rejected.     Fox  v. 

Turner,  I  Bradwell's  III.  App.  Rpts.  153. 

5.  An  acceptance  without  conditions,  limitations,  or  provisions,  or 
otherwise  changing  the  terms  of  the  offer,  is  binding  as  soon  as  the  ac- 
ceptance letter  is  mailed.      Taylor  v.  Merchants'  Fire  Ins.  Co.,  9  How. 
U.  S.  390 ;  Hutchinson  v.  Bldkeman,  3  Met.  Ky.  80. 

6.  An  offer  made  by  mail  may  be  revoked  by  telegraph,  by  mes- 
senger, or  in  any  other  way,  provided  the  notice  of  withdrawal  be  con- 
veyed in  time,  i.  e.,  before  the  party  has  mailed  his  letter  accepting  the 
offer.     Ibid. 

(5) 


6  MONROE'S  DIGEST 

7.  Any  qualification  of,  or  departure  from,  the  terms  in  which  the 
offer  is  made,  invalidates  the  offer,  unless  the  same  be  agreed  to  by  the 
person  who  made  it.     Gleason  v.  Hanshaw,  4  Wheat.  U.  S.  225. 

8.  Acceptance  of  a  lesser  sum  does  not.  ordinarily,  bar  a  demand 
for  a  greater.      White  v.  Kuntz,  107  N.  Y.  518. 

9.  The  acceptee  can  no  more  overtake  and  countermand  by  tele- 
graph his  letter  mailed,  than  he  can  bis  words  of  acceptance,  after  they 
have  issued  from  his  lips  on  their  way  to  the  hearer.    Hallock  v.  Conn. 
Ins.  Co.,  2  Dutch.  281,  per  Vredenburgh,  J.,  N.  J. 

10.  Where    an   offer    is   made  between  persons  present,  it  is,  in- 
ordinary  cases,  deemed  to  be  revoked,  unless  accepted  before  the  parties- 
separate.     Mactier  v.   Frith,  6  Wend.   N.  Y.  103 ;  Averill  v.  HedgeT 
12  Conn.  424. 

11.  When  an  offer  is  made  by  mail,  it  is  presumed  to  continue  until 
the  person  to  whom  it  is  made  has  a  reasonable  time  in  which  to  accept 
or  reject  it.     This,  it  is  understood  in  mercantile  cases,  means  by  re- 
turn of  mail.     Dunlop  v.  Higgins,  1   H.  of  L.  Eng.  381 ;  Averill  v. 
Hedge,  12  Conn.  424. 

12.  In  many  cases  the  reasonable  time  will  depend  upon  the  cir- 
cumstances and  nature  of  the  business.     Loring  v.  City  of  Boston, 
Mete.  Mass.  409 ;  Peru  v.  Turner,  1  Fairf.  Me.  185. 

13.  In  some  cases  the  nature  of  the  offer  requires  no  letter  of  ac- 
ceptance of  the  terms  offered,  is  necessary  in  order  to  create  a  con- 
tract, and  the  person  receiving  the  offer  may  accept  simply  by  acting 
upon  it  without  communicating  with  the  offerer.     Lungstrass  v.  Ger- 
man Ins.  Co.,  48  Mo.  201. 

14.  As  were  offers  of  reward  for  the  detection  of  offenders,  or  the 
recovery  of  property  and  the  like,  and  orders  for  goods.     Freeman 
v.   City  of  Boston,  5  Mete.  Mass.    56 ;  Loring  v.  City  of  Boston,  T 
Mete.   Mass.   409;    Fitch  v.  Snedaker,  38    N.  Y.   248;    Williams  v. 
Carivardine,  4  Barn,  and  Ad.  Eng.  621 ;    Thomson  v.  James,  18  Dutch. 
Eng.  1 ;   Cook  v.  Ludlow,  5  Bos.  and  P.  2  N.  R.  Eng.  119. 

15.  So  also,  wherever  it  is  necessary  for  a  party  to  express  his  dis- 
sent, if  he  does  not  agree  to  a  proposition,  and  he  makes  no  reply,  hi* 
assent  can  be  presumed.     1  Statute  on  Cont.  Eng.  444. 

16.  The  rules  of  law  in  contracts  made  by  mail  are  applicable  to 
those  made  by  telegraph.      Trevor  v.  Wood,  36  N.  Y.  307  ;  Duble  v. 
Balls,  38  Tex.  312 ;    Wells  v.  Milwaukee,  Etc.,  R.  R.  Co.,  3  Wis.  605  -r 
Schonberg  v.  Cheney,  3  Hun,  N.  Y.  617. 

17.  Where  an  order  for  any  article,  such  as  lottery  tickets,  was 
sent  from  a  state  where  the  sale  of  such  tickets  are  prohibited  by  law 
to  another  state,  where  the  sale  of  such  tickets  was  lawful,  and  where 
the  assent  was  given,  and  not  in  that  where  it  was  received,  assent  i» 
binding.     Mclntyre  v.  Parks,  3  Mete.  Mass.   207  ;  Newcomb  v.  De~ 
Roos,  2  El.  Eng.  271 ;  Waldron  v.  Michings,  3  Daly  N.  Y.  288. 


OF   STANDAKD   DECISIONS. 


ACCOMMODATION. 

18.  The  fact  that  the  drawer  presents  the  draft  to  the  payee,  with 
the  acceptance  of  the  drawees  on  it,  is  out  of  the  usual  course  of  busi- 
ness, and  a  circumstance  indicating  to  the  payee  the  accommodation 
character  of  the  acceptance.  Bloom  v.  Helm,  53  Miss.  21. 


ACCOUNT  STATED. 

19.  It  seems  that  to  give  to  an  account  delivered  the  force  of  an 
account  stated,  because  of  silence  on  the  part  of  the  party  receiving 
it,  the  circumstances  must  be  such  as  to  justify  an  inference  of  assent, 
upon  his  part,  to  its  correctness.     Where  he  has  disclaimed  all  liability 
upon   the  account,  he  is  not  bound  to  examine  the  items,  upon  its  de- 
livery to  him,  and  his  omission  to  object  will  not  be  taken  as  an  ad- 
mission of  their  correctness,  and  is  not  prima  facie  proof  of  the  account. 
Guernsey  v.  Bexford,  18  Sickels,  N.  Y.  631. 

20.  The  mere  rendering  of  an  account  does  not  make  it  an  account 
stated,  and  an  omission  to  object  to  it  raises  only  a  presumption  of 
assent,  which  may  be  rebutted  by  circumstances  tending  to  a  contrary 
inference.     Ibid. 

21.  An  account  stated  is  presumptive  evidence  only  of  the  bal- 
ance admitted  to  be  due,  and  may  be  corrected  for  fraud  or  mistake. 
On  the  settlement  of  accounts,  the  parties  may,  by  agreement,  limit 
the  time  within  which  claim  for  the  correction  of  mistakes  or  omissions 
shall  be  made ;  and  in  such  case,  evidence  of  an  omitted  demand  may 
be   excluded,  unless  proof  be  made  of  claim  for  its  allowance  within 
the  time  agreed  upon  by  the  parties.      Vandeveer  v.  Statesir,  Adm>r, 
39  N.  J.  Law,  593. 

22.  For  a  period  of  two  years  A.  kept  an  account  with  a  bank, 
for  money  loaned,  checks  paid,  and  credits  for  deposits  and  payments ; 
the  bank  during  the  time  making  monthly  statements,  striking  the 
balance  due   each    month,   which    was   carried   forward  and  charged 
against  A.     Held,  that  the  monthly  balances  were  not  distinct  settle- 
ments, but  that  the  whole  constituted  a  running  account,  and  was,  in 
effect,   but   one  transaction.     Pickett,  et  al.  v.  Merchants'  Nat.  Bank 
of  Memphis,  et  al.,  32  Ark.  346. 

23.  An  account  stated  can  only  be  opened  where  the  party  object- 
ing shows  clearly  that  he  has  been  misled  by  fraud,  mistake  or  mani- 
fest error.     Harley  v.  Eleventh  Ward  Nafl  Bank,  76  N.  Y.  618. 


ADMINISTRATORS. 

24.  The  written  acknowledgment  of  a  debt  by  an  administrator 
will  not  bind  the  succession  if  such  debt  does  not  really  exist.  An  ad- 
ministrator cannot  avail  of  any  defect  in  a  legal  proceeding  caused  by 
his  fault.  Succession  of  Margaret  McAuley,  29  La.  33. 


S  MONROE'S  DIGEST 


ADMISSIONS  AND  DECLARATIONS. 

25.  Declarations  of  assignor  for  benefit  of  creditors  made  after  de- 
livery of  possession  under  assignment,  not  competent  against  the  as- 
signee.    Coyne  v.  Weaver,  84  N.  Y.  386. 

26.  One  joint  debtor  cannot  bind  another  by  his  statements  or  ad- 
missions  unless  he  is  the  agent  or  in  some  way  the  representative  of 
the  other  and  authorized  to  speak  for  him ;  the  mere  fact  of  joint  lia- 
bility does  not  give  the  authority.      Wallis  v.  Randall,  81  N.  Y.  164. 

27.  The  title  of  the  assignee  of  a  non -negotiable  promissory  note 
cannot  be  affected  by  declarations  of  the  assignor,  made  after  the  as- 
signment.     Van  Gelder  v.  Van  Gelder,  81  N.  Y.  625. 

28.  The  effect  of  the  admissions  of  a  party  as  evidence  is  not  de- 
stroyed by  proof  if  otherwise   uncontradicted,  contrary  to  the  admis- 
sions, but  they  raise  a  question  of  fact  for  a  jury.     Greenwood  v. 
Schumacher  (Mem.)  82  N.  Y.  614. 


ADVICE  OF  COUNSEL. 

29.  Where  a  party,  in  good  faith,  consults  with  a  licensed  attorney, 
and  acts  upon  his  advice  in  making  a  complaint  for  the  arrest  of  an- 
other, he  may    show  that  fact  in  defence,  and  it  is  not  incumbent  on 
him  to  go  further  and  show  that  such  attorney  was  a  man  learned  and 
skilled  in  his  profession.     Home  v.  Sullivan,  83  111.  30. 

30.  A  party  seeking  the  advice  of  counsel  as  to   commencing  a 
criminal  prosecution  must  act  in  good  faith  and  without  gross  negli- 
gence, and  not  withhold  any  information  with  an  intent  to  procure  an 
opinion  that  might  operate  to  shelter  and  protect  him  against  a  suit. 

31.  If  a  party  culpably  or  negligentlj-  withholds  from  counsel  any 
material  fact,  the  advice  will  not  protect  him.     But  where  the  counsel 
advised  with  is  already  conversant  with  a  material  fact,  by  being  an 
attorney  of  the  party  in  a  prior  suit,  it  will  not  be  necessary  for  the 
party  to  give  him  information  of  it.     He  may,  in  such  case,  presume 
the  counsel  has  knowledge  as  to  such  fact,  without  being  chargeable 
with  bad  faith.     Per  Breese,  J.,  Brown  v.  Smith,  83  111.  291. 


AGENTS. 

32.  Where  an  agent  to  loan  money  takes  insufficient  security,  the 
principal  is  not  bound,  at  his  peril,  to  accept  and  discharge  the  agent, 
or  to  reject  the  security  and  look  only  to  the  responsibility  of  the 
agent.     The   principal,  in  such  case,  may  take  the  security,  and  still 
hold  the  agent  bound  for  any  deficiency  which,  after  due  diligence,  he 
suffers  on  it.     Guernsey  et  al.  v.  Rexford,  Adm.  Apllt,  18  Sickels,  N. 
Y.  631. 

33.  In  an  action  for  liquors  sold  and  delivered,  to  which  the  de- 
fence  was  that  the  goods  were  sold  to  a  third  person,  there  was  evi- 
dence that  the  defendant  told  the  plaintiff's  agent  that  he  had  bought 


OP  STANDARD   DECISIONS.  9 

a  billiard-saloon,  and  was  going  to  put  the  third  person  in  to  run  the 
place ;  that  the  latter  would  want  some  liquors  and  he  wished  some 
might  be  sent,  and  ordered  the  liquors ;  that  the  third  person  in  fact 
ran  the  place  and  appeared  to  do  all  the  business  there ;  there  was 
also  evidence,  admitted  under  the  defendant's  exception,  that  after- 
wards the  third  person  told  the  agent  that  the  defendant  had  given 
authority  to  buy  stock  for  the  saloon,  and  asked  the  agent  to  write  at 
once  to  the  plaintiff  to  hurry  up  the  liquors  previously  ordered ;  that 
the  agent  thereupon  wrote  a  letter  containing  a  copy  of  the  order 
which  he  had  previously  received  from  the  defendant,  in  which  the  de- 
fendant's name  appeared  as  the  person  ordering  the  goods,  and  the 
letter  was  produced  and  admitted  in  evidence,  although  it  had  not 
been  read  by  the  third  person.  Held,  that  there  was  sufficient  evi- 
dence that  the  third  person  was  the  agent  of  the  defendant,  and  that 
the  letter  was  admissible  in  evidence.  Lozier  v.  Crofts,  123  Mass. 
480. 

34.  Persons  who  deal  with  an  agent  before  notice  of  the  recall  of 
his  powers  are  not  affected  by  the  recall.     Hatch  v.  Coddington,  95  U. 
S.  48. 

35.  B.,  a  broker,  advised  A.  to  sell  certain  unregistered  bonds  and 
buy  certain  other  bonds.     A.  in  reply,  by  letter,  said,  "  I  am  most 
anxious  to  get  my  money  in  registered  bonds,"  authorized  B.  to  sell 
the  bonds  then  held  by  B.  for  him,  "  and  invest  the  amount  in  the  best 
paying  and  surest  bonds  that  you  know  of."     "  As  these  bonds  are  all 
I  possess,  I  am  naturally  always  anxious  about  them,  for  the  reason 
that,  if  lost  or  stolen,  I  could  recover  nothing.     You  will  please  invest 
the  results  of  the  sale  in  the  I.  bonds  (the  ones  recommended),  or  any 
sure  road."    "  I  want  registered  bonds  of  which  I  will  have  no  trouble 
in  drawing  the  interest."     "  I  shall  be  under  many  obligations  if  you 
will  kindly  make  such  sale  and  purchases  of  bonds  as  your  good  sense 
•dictates."     It  was  agreed  that  the  bonds  referred  to  by  B.  were  first- 
mortgage  bonds.     B.  in  fact  bought  some  first-mortgage  and  some  sec- 
ond-mortgage bonds,  all  of  which  were  unregistered.     Held,  that,  if  he 
acted  in  good  faith,  it  was  within  the  scope  of  the  authority  conferred 
upon  him  by  the  letter  of  A.     Matthews  v.  Fuller,  123  Mass.  446. 

36.  Agent  will  not  in  equity  be  permitted  to  profit  by  his  negli- 
gence toward  his  principal.     Mitchell  v.  Aten,  37  Kan.  33. 

37.  Where  the  authority  of  the  agent  is  left  to*  be  inferred  by  the 
public  from  powers  usually  exercised  by  the  agent,  it  is  enough  if  the 
transaction  in  question  involves  precisely  the  same  general  powers, 
though  applied  to  a  new  subject-matter.     Merchants'  Bank  v.  State 
Bank,  10  Wall.  U.  S.  604. 

38.  Thus,  if  in  the  case  of  a  bank  having  power  by  its  charter  to 
buy  and  sell  exchange  coin  and  bullion,  its  cashier  has  habitual!}', 
with  the  knowledge  of  the  bank,  dealt  with  the  public  as  authorized  to 
buy  and  sell  exchange,  then  the  power  to  buy  and  sell  coin  also  (the 
right  to  do  both  being  conferred  by  the  same  clause  of  the  charter), 
may  be  inferred  by  a  jury.     Ibid. 

39.  The  act  of  an  unauthorized  agent  only  becomes  the  act  of  the 
principal  after  ratification  upon  full  knowledge,  so  far  as  the  interven- 
ing rights  of  third  persons  are  concerned.    Schnepel  v.  Mellen,  3  Mont. 
118. 


10  MONROE'S  DIGEST 

40.  One  cannot  act  as  agent  for  both  seller  and  purchaser,  unless 
both  know  of  and  assent  to  his  undertaking  such  agency,  and  receiving 
commissions  from  both.     Whether  such  double  agency,  even  with  con- 
sent of  both  principals,  is  consistent  with  public  policy,  is  not  here  de- 
cided.    Meyer,  et  al.  v.  Hanchett,  43  Wis.  246. 

41.  A  principal  who  employs  an  agent  to  do  a  legal  thing,  is  not 
liable  in  damages  for  any  illegal  act  of  the  agent  done  in  the  execution, 
of  the  mandate,  to  which  the  principal  was  not  accessory,  or  privy. 
Andreas  Richoux  v.  Mayer  Bros.,  29  La.  828. 

42.  It  is  a  general  rule,  of  almost  universal  application  that,  where 
a  person  acts   by  an  agent,  the  act  is  his,  and  not  that  of  the  agent. 
Where  the  agent  does  not  disclose  the  name  of  his  principal  in  making 
a  contract,  the  other  party  may,  when  he  learns  it,  hold  him  respon- 
sible for  its  performance,  and  the  principal  may,  on  showing  the  agencyr 
claim  and  enforce  the  contract,  precisely  as  if  entered  into  by  himself, 
Baher  v.  Garvey,  83  111.  184. 

43.  The  admission  of  the  alleged  agent  that  he  is  authorized  to 
represent  a  third  person  in  a  suit,  does  not  prove  the  agency.     The 
authority  to  represent  a  defendant  in  a  suit  must  be  shown  expressly t 
or  by  irresistible  implication.     Mrs.  Marie  E.  Dawson  v.  Marie  Lan- 
dreaux,  29  La.  363. 

44.  The  principal  is  bound  by  any  contract  made  by  his  agent 
which  is  necessary  to  carry  out  the  objects  of  the  agency  ;  and  no  con- 
fidential limitation  of  the  mandate  can  operate  to  the  prejudice  of 
any  innocent  third  person.     E.  H.  Farrar  v.  Stephen  Duncan,  29  La. 
126. 

45.  Where  an  agent  has  fraudulently  sold  his  principal's  property,, 
and  embezzled  its  proceeds,  and  the  principal  afterward  accepts  from 
the  agent  something  in  compensation  for  the  embezzled  proceeds,  he 
thereby  ratifies  the  sale  made  by  the  agent,  and  estops  himself  from 
any  recourse  against  the  innocent  purchaser  of  his  property.     R.  N. 
Ogden  v.  A.  Marchoud,  29  La.  61. 

46.  An  action  cannot  be  maintained  against  an  agent  on  a  contract 
executed   by  him   in  behalf  of  his  principal,  unless  it  contains   apt 
words  to  charge  him  personally,  even  though  he  acts  without  author^ 
ity  or  in  excess  of  authority  ;  but  he  may  become  personally  liable  on 
a  contract  containing  apt  words  to  bind  him,  and  then  the  words  de- 
scriptive of  his  agency  will  be  rejected  as  surplusage.     Hancock  v. 
Yunker,  et  al.,  83  111.  208. 

47.  Where  a   principal   has   dealt   with   a   merchant  through  an 
agent  acting  under  a  written  power  of  attorney,  the  merchant  may 
prove  by  parol  the  correctness  of  his  account,  and  any  acknowledgment 
of  its  correctness,  or  any  ratification  of  it  by  the  principal,  even  if  the 
agent  has  transgressed  his  mandate,  or  there  are  charges  in  the  account 
which  could  not  be  legally  enforced.     Ratification  by  the  principal  of 
the  unauthorized  acts  of  an  agent  makes  those  acts  binding  on  the 
principal.     A  power  of  attorney  sufficiently  comprehensive  to  authorize 
the  agent   to  manage  a  plantation,  and  disburse  the  proceeds  of  its- 
crops,  will  justify  the  factor  who  sells  the  crops  to  pay  out  their  pro- 
ceeds on  the  orders  of  the  agent.     G.  W.  Sentell  &  Co.,  in  liquidation 
v.  Mrs.  M.  O.  Kennedy  and  Husband,  29.  La.  679. 

48.  The  good  faith  of  the  agent  does  not  exonerate  him  from  liabil- 


OF   STANDARD   DECISIONS.  11 

ity  to  his  principal,  if  be  has  been  in  fact  negligent,  or  has  disregarded 
orders.     Bank  of  Owensboro  v.  Western  Bank,  13  Bush,  Ky.  526. 

49.  A  member  of  a  copartnership,  after  the  dissolution,  has  no 
agency  growing  out  of  the  former  partnership  relation  to  create  or  to- 
perpetuate  a  liability  of  his  late  copartner  for  partnership  indebted- 
ness, as  against  the  operation  of  the  statute  of  limitations.      Tate  v. 
Clements,  16  Fla.  339. 

50.  Where  bonds  are  delivered  to  an  attorn  ey-at-law  and  business 
agent,  not  a  dealer  in  bonds,  for  the  purpose  that  he  should  collect  the 
amount  thereof  from  the  county  in  money  or  new  bonds,  or  in  both, 
but,  in  violation  of  his  duty,  he  sells  said  bonds  to  a  third  person,  such 
sale  is  void.     Hannon  v.  Houston,  18  Kan.  561. 

51.  An  agent  of  an  undisclosed  principal  may  be  treated  as  the 
principal.      Welch  v.  Goodwin,  123  Mass.  71. 

52.  Authority  by  a  principal  to  an  agent  to  invest  his  money,  and 
look  after  his  business  generally,  will  not  enable'the  agent  to  sell  hisr 
principal's  property,  even  such  as  may  be  acquired  as  the  result  of  the 
investment.     Smith,  et  al.  v.  Stephens'on,  et  al.,  45  Iowa,  645. 

53.  Notice  to  an  agent  bound  in  the  discharge  of  his  duty  to  act 
upon  it  and  to  communicate  it  to  his  principal,  is  notice  to  the  princi- 
pal.    Philadelphia  v.  Lockhardt,  73  Pa.  211. 

54.  A  railroad  corporation  conferred  upon  its  president,  by  a  by- 
law, authority  to  act  as  "  business  and  financial  agent "  of  the  corpo- 
ration.    Thereafter  such  officer  executed,  under  the  corporate  seal,  a 
mortgage  upon  a  locomotive  belonging  to  the  corporation,  to  secure  a 
debt  of  the  corporation.     Held,  that  the  authority  of  the  president 
•was  conQned  to  the  ordinary  business  of  the  corporation  ;  that  the- 
execution  of  the  mortgage  was  without  the  scope  of  his  authority,  and 
that   such   mortgage  was   not   a   lien  upon  the  property  in  question. 
Luse  v.  Isthmus  Transit  Railway  Co.,  6  Or.  125. 

55.  The  general  rule  is  that  the  clerks  of  an  agent  are  not  agents 
of  the  principal.     Hope  v.  Dixon,  22  Grant's  Ch.,  Ontario,  439. 

56.  Payments  received  by  one  knowing  the  agent  to  be  unauthor- 
ized to  make  them,  may  be  recovered  by  the  principal  as  money  wrong- 
fully had  and  received.     Demarest  v.  Inhabitants  of  New  Barbadoes, 
40  N.  J.  Law,  604. 

57.  Where  the  acts  of  the  agent  will  bind  the  principal,  where  his 
representations,  declarations   and   admissions  respecting  the  subject 
matter  will  bind  the  principal,  when  made  at  the  same  time  and  con- 
stituting a  part  of  the  res  gestse.     Coyle  v.  B.  &  0.  E.  R.  Co.,  11  W. 
Va.  94. 

58.  An  agent  having  special  authority  to  adjust  a  particular  loss 
cannot,  by  virtue  thereof,  adjust  a  different  loss,  and  whatever  he  may 
do  with  reference  to  the  different  loss  cannot  affect  the  principal.     To 
find  the  principal,  it  must  be  shown  by  competent  evidence  that  the 
agent  acted  within  the  scope  of  his  authority.     Hartford  Fire  Ins. 
Co.  v.  Smith,  et  al.,  3  Colo.  422.  v 

59.  The  employment  of  an  agent  by  the  principal  to  sell  land  need 
not  be  in  writing,  but  the  agent  may  recover  for  services  rendered  in 
effecting  the  sale,  by  virtue  of  a  verbal  contract.      Watson  v.  Bright- 
well,  60  Ga.  212. 

60.  Money  borrowed  by  the  agent  on  the  credit  of  the  principal. 


12  MONROE'S  DIGEST 

without  authority,  goes  into  the  principal's  business  without  the  latter's 
knowledge,  and  the  principal  has  the  benefit  thereof,  yet  is  not  the 
principal  liable  therefor  to  the  person  of  whom  it  was  borrowed,  in  the 
absence  of  a  promise  to  pay.  Spooner  v.  Thompson  and  wife,  48  Vt. 
259. 

61.  Authority  to  make  a  contract  for  another  is  not  sufficient  to 
Authorize  its  cancellation  or  surrender.     Stillweil  v.  Mut.  Ins.  Co.,  72 
N.  Y.  App.  385 ;  also,  Duryee  v.  Lester,  75  N.  Y.  442. 

62.  One  who  constitutes  another  his  agent,  with  full  power  to 
manage  his  mercantile  house  and  to  do  all  acts  appertaining  to  his 
business,  makes  himself  liable  for  the  value  of  all  goods  purchased  by 
the  agent  in  the  line  of  that  business.     Schmidt  and  Zeigler  v.  Sandal, 
*t  al.,  30  La.  353. 

63.  Held  that  the  general  agent  in  Canada  of  a  foreign  company 
must  be  regarded  in  the  same  light  as  the  general  agent  at  the  head 
office  in  the  foreign  country.     Campbell  v.  National  Life  Ins.  Co.,  24 
Upper  Canada  Com.  Pleas  Rpts.  133. 

64.  Notice  to  the  agent  is  notice  to  the  principal,  if  the  agent 
<jomes  to  the  knowledge  of  the  fact  while  he  is  acting  for  the  principal 
in  the  course  of  the  very  transaction  which  becomes  the  subject  of  the 
suit.     Such  knowledge  of  the  agent  is  imputed  to  the  principal  third 
party  who  has  dealt  with  the  agent  in  good  faith.     Stanly  v.  Chamber- 
lin,  39  N.  J.  Law,  565. 

65.  A  principal  is  always  bound  by  the  acts  and  neglects  of  his 
agent.     And  the  same  rule  which  applies  to  a  private  principal  applies 
to  a  corporation,  whether  ordinary  or  municipal,  and,  a  fortiori,  to  a 
-corporation  which  can  only  act  by  an  agent.     City  of  Petersburg  v. 
AppelgartWs  Adm'r,  28  Gratt.  Ya.  321. 

66.  An  agent's  authority,  not  coupled  with  an  interest,  being  re- 
vocable at  the  pleasure  of  the  principal,  one  dealing  with  such  agent 
after  notice  of  revocation,  does  so  at  his  peril.     Patton  v.  Coen  &  Ten 
Broeke,  3  Colo.  265. 

61.  The  declarations  of  one  acting  as  the  agent  of  both  parties  to 
a  contract,  if  made  within  the  scope  of  his  authority,  are  properly  re- 
ceivable in  evidence  in  an  action  between  the  parties  to  the  contract. 
Schaefer,  et  al.  v.  Gildea,  et  al.,  3  Colo.  15. 

68.  If  the  purchaser  of  property  does  not  know  that  he  is  dealing 
with  an  agent  of  the  owner,  and  has  not  good  reason  to  know  it,  he  is 

justified  in  treating  the  agent  as  the  owner,  and  payment  of  the  pur- 
chase price  to  him  will  be  a  defence  to  an  action  by  the  owner  for  the 
amount.  The  Eclipse  Windmill  Co.  v.  Thorron,  46  Iowa,  181. 

69.  Where  an  agent,  clothed  with  power  to  accept  bills,  has  ac- 
cepted a  bill  in  the  name  of  his  principal,  the  latter  cannot  escape  lia- 
bility as  acceptor  on  the  ground  that  he  had  no  interest  in  the  transac- 
tion in  which  the  bill  was  given,  and  that  he  had  received  no  consider- 
ation, unless  he  proves  that  his  agent,  to  the  knowledge  of  the  holder 
of  J,he  bill,  has  abused  his  power.     Broadway  Savings  Bank  of  St. 
Louis  v.  Edward  Vorster,  et  al.,  30  La.  587. 

70.  In  an  action  for  goods  sold  and  delivered  the  defence  is  pay- 
ment to  an  agent,  the  fact  that  the  principal  has  previously  revoked 
the  authority  of  the  agent  is  not  conclusive  of  plaintiff's  right  to  re- 
cover, if  the  revocation  of  authority  has  not  been  communicated  to 


OF   STANDARD   DECISIONS.  13 

the  defendant,  and  there  is  other  evidence  in  the  case  from  which  the 
jury  would  be  authorized  in  finding  that  the  defendant  had  reason  to 
suppose  that  the  authority  of  the  agent  to  receive  payment  continued. 
Parker  v.  Hinckley  Locomotive  Works,  122  Mass.  484. 

11.  One  who  purchases  goods  at  half  their  value,  he  having  infor- 
mation from  which  he  may  know  that  the  factor  with  whom  he  deals  is- 
acting  without  authority,  and  in  fraud  of  his  principal,  takes  no  title 
thereto,  such  a  purchase  being  inconsistent  with  good  faith,  and  voidr 
and  the  principal  may  recover  the  goods  from  such  pretended  vendee. 
Singer  Manufacturing  Co.  v.  Hudson,  4  Mo.  App.  145. 

12.  Where  one,  without  consideration,  entrusted  an  agent  with  a 
sum  of  money  to  settle  a  lawsuit  between  two  others,  she  has  the 
power  of  revocation  until  the  settlement  is  complete,  especially  if  the 
contract  be  in  writing,  and  it  is  therein  expressly  agreed  that  the  terms- 
of  the  settlement  are  to  be  satisfactory  to  her  in  every  way,  and  if  notr 
then  the  money  to  be  restored  to  her.     Phillips,  et  al.  v.  Howell,  60- 
Ga.  411. 

13.  Where  a  party,  acting  through  an  agent,  loans  money  on  the 
security  of  the  borrower's  mortgage,  and  the  agent,  who  keeps  the 
note  in  his  possession,  pays  over  from  time  to  time  to  his  principal  the 
accruing  interest  and  parts  of  the  principal  of  the  note  received  from 
the  maker,  finally  pays  over  to  the  principal  the  balance  due  on  the 
note,  without  stating  that  he  is  paying  his  own  money,  and  without 
obtaining  the  consent  of  his  principal  to  buy,  or  even  intimating  that 
he  desired  to  buy  the  note,  he  will  not  acquire  any  title  to  the  note  \ 
and  the  note  itself,  and  the  accompanying  mortgage,  will  be  deemed 
extinguished.     Albert  G.  Brice  v.  John  A.  Watkins,  et  al.,  30  La.  21; 

14.  Where  an  agency  is  continuous  and  made  up  of  a  long  series 
of  transactions  of  the  same  general  character,  knowledge  acquired  by 
the  agent  in  one  or  more  of  the  transactions  is  notice  to  the  agent  and 
the  principal,  which  will  affect  the  latter  in  any  other  transaction  in 
which  the  agent,  as  such,  is  engaged  and  in  which  the  knowledge  is 
material.     Holden  v.  N.  Y.  and  Erie  Bank,  72  N.  Y.  App.  286. 

T5.  An  agent  employed  in  negotiating  the  sale  of  a  promissory 
note,  making  statements  regarding  the  purpose  for  which  the  same 
was  executed,  such  statements  will  be  considered  fairly  within  the 
scope  of  his  agency  and  will  bind  his  principal ;  the  general  power  to 
negotiate  will,  by  implication,  include  the  power  to  give  such  informa- 
tion as  would  ordinarily  be  called  for.  McBean  v.  Fox,  et  al.,  1  Brad- 
well's  111.  App.  177. 

16.  An  agent  for  the  sale  of  goods,  with  an  interest  in  the  pro- 
ceeds, is  not  deprived  of  the  power  to  sell  by  the  death  of  the  princi- 
pal. The  terms  of  the  agency  were  that  the  agent  should  sell  the 
goods  and  out  of  the  proceeds  pay  certain  lien  and  other  claims,  and 
apply  the  balance,  first,  to  the  payment  of  certain  notes  he  held 
against  the  principal  and  return  the  overplus  to  the  principal.  Held, 
that  the  power  was  not  extinguished  by  the  death  of  the  principal , 
that  the  agent  had  a  right  to  sell,  and  apply  the  proceeds  as  agreed; 
and  to  pay  his  own  notes  in  full,  even  though  the  estate  was  rendered 
insolvent  and  other  creditors  received  only  a  percentage.  In  this  case 
the  notes  were  delivered  by  the  defendant  to  the  plaintiff,  and  by  her 
presented  to  the  commissioners.  Held,  that  their  allowance  by  the 


14  MONROE'S  DIGEST 

Commissioners  as  a  claim  against  the  estate,  without  the  procurement 
or  authority  of  the  defendant,  in  no  way  affected  his  rights.  Merry, 
adm'r'x  of  Patterson  v.  Lynch,  68  Me.  94. 

T7.  A  formal  instrument,  delegating  powers,  is  ordinarily  subject 
to  a  strict  interpretation,  and  the  authority  is  not  extended  beyond 
that  given  in  terms,  or  which  is  necessary  to  carry  into  effect  that 
which  is  expressly  given.  Craighead  v.  Peterson,  72  N.  Y.  279. 

T8.  An  assignee  or  trustee  cannot  speculate  with  assigned  prop- 
erty, save  at  his  own  risk.  Neither  can  he  engage  in  business  ventures 
at  remote  places,  and  of  doubtful  results,  without  rendering  himself 
personally  liable  for  any  untoward  results.  Stettauer  v.  Carney,  20 
Kan.  489. 

T9.  W.  was  the  owner  (subject  to  a  mortgage)  of  property  which 
M.  wished  to  buy ;  R.  becoming  aware  of  this,  entered  into  friendly 
negotiations  with  both,  and  bargained  with  W.  to  take  $3,500,  and 
with  M.  to  give  $5,600  for  the  property ;  R.  concealed  this  difference 
from  the  parties.  W.  conveyed  to  M. ;  on  her  signing  the  deed,  R.'s 
attorney  paid  to  her  the  |3,500  (less  the  mortgage  debt),  and  on  the 
deed  being  delivered  to  M.,  she  (M.)  paid  to  R.'s  attorney  the  $5,600. 
The  facts  afterwards  coming  to  the  knowledge  of  W.,  she  filed  a  bill 
against  R.,  claiming  the  balance  of  the  $5,600  ;  and  it  appearing  that 
in  the  negotiations  he  had  given  W.  to  understand  that  he  was  acting 
in  her  interest  and  had  no  personal  interest  of  his  own,  the  plaintiff 
was  held  entitled  to  a  decree  against  R.  for  such  balance  with  interest 
and  costs.  There  may  be  an  agency,  and  its  duties  and  liabilities, 
without  express  words  of  appointment  or  acceptance ;  and  where  a 
party  in  negotiating  between  two  persons,  the  one  desiring  to  sell,  the 
other  to  buy  certain  land,  gave  the  former  to  understand  that  he  was 
acting  in  her  interest,  it  was  held  that  she  was  entitled  to  the  full  price 
which  he  obtained  for  the  land,  though  it  exceeded  the  amount  which 
he  had  obtained  her  consent  to  accept.  In  such  a  case,  there  being  a 
conflict  as  to  what  had  passed  in  the  conversations,  and  no  other  wit- 
ness of  them  being  produced,  it  was  held  that,  all  other  things  being 
equal,  the  version  of  the  deceived  party  should  be  accepted  in  prefer- 
ence to  that  of  the  other  party.  Wright  v.  Rankin,  18  Grant's  Ch., 
Ontario  625. 

80.  The  owner,  by  delivery  of  an  unendorsed  promissory  note  pay- 
able to  another,  delivered  the  same  for  collection  to  an  agent,  who, 
without  the  knowledge  or  consent  of  the  owner,  delivered  the  same  for 
collection  to  a  third  person,  who  received  knowledge  of  the  rights  of 
such  owner.  On  £he  trial  of  an  action  by  such  owner  against  such 
third  person  to  recover  the  money  so  collected  by  the  defendant, 
wherein  the  complaint  alleged  a  demand  and  refusal,  the  evidence  es- 
tablished that  the  plaintiff,  being  the  owner,  by  delivery,  of  an  unen- 
dorsed promissory  note  pa3'able  to  another,  delivered  the  same  to  an 
agent  for  collection  ;  that  such  agent,  without  the  plaintiff's  knowledge 
or  consent,  delivered  the  same  for  collection  to  the  defendant,  without 
informing  him  as  to  the  plaintiff's  ownership  thereof;  that  the  defend- 
ant received  and  collected  the  same  and  used  the  proceeds,  believing  it 
to  be  the  property  of  the  payee ;  and  that  another  agent  of  the  plain- 
tiff, without  informing  the  defendant  of  his  agency  or  of  the  plaintiff's 
rights,  demanded  of  the  defendant  a  settlement.  Held,  that  the  plain- 


OF  STANDARD   DECISIONS.  15 

tiff,  by  suing  the  defendant,  ratified  the  act  of  her  agent  in  placing 
such  note  in  the  defendant's  hands.  Held,  also,  that  a  demand  was 
necessary,  and  that  a  finding  that  none  was  properly  made  will  not  be 
disturbed  where  the  evidence  in  relation  thereto  is  conflicting.  Held, 
also,  that  under  the  averment  of  the  complaint,  that  demand  had  been 
made  and  refused,  evidence  of  a  conversion  by  the  defendant  could  not 
be  given  as  an  excuse  for  making  no  demand.  Kyser  v.  Wells,  60 
Ind.  261. 

81.  A.,  who  had  purchased  the  bankrupt  stock  in  trade  of  B.,  made 
an  agreement  with  him  in  writing  by  which  B.  was  "  to  do  business  " 
at  the  same  shop,  as  "  agent  for  "  A.,  authorizing  B.  "  to  sell  the  goods 
now  in   stock  and  buy  other  goods,  in   order  to  keep  the  stock  good 
with  the  money  received,  but  not  to  buy  on  credit  without  an  order  in 
writing  "  from  A.,  and  providing  that  "  if  at  any  time  the  business  is 
not  carried  on  to  the  satisfaction  "  of  A.,  "  the  store  and  fixtures,  to- 
gether with  all  the  goods  in  the  store  and  the  books  and  accounts,  shall 
be  turned  over,  with  the  keys  of  the  store,  to  the  said  "  A.     B.,  with- 
out an  order  in  writing  from  A.,  purchased  certain  goods  on  credit  of 
the  plaintiff,  who  was  in  ignorance  of  B.'s  relation  to  A.,  all  of  which 

foods  went  into  the  stock  of  the  store,  to  the  use  and  benefit  of  A. 
oon  after,  A.  took  possession  of  all  the  goods  in  the  shop,  including 
such  of  those  sold  by  the  plaintiff  as  remained  in  the  stock,  and  sold 
them  as  his  own.  Held,  in  an  action  against  A.  to  recover  for  the 
goods  sold  by  the  plaintiff  to  B.,  that  the  agreement  made  B.  the 
agent  of  A.  to  carry  on  the  shop ;  that  A.,  by  taking  and  selling  a 
part  of  the  goods,  had  ratified  the  act  of  B.  in  purchasing  on  credit 
without  his  order ;  and  that  the  action  would  lie.  Surtwell  v.  Frost, 
122  Mass.  184. 

82.  Defendant   executed   a  power  of  attorney  as  follows :    "  To 
whom  it  may  concern :     This  is  to  certify  that  I  hereby  authorize  H. 
Loveland,  as  my  agent,  to  make  drafts  on  me,  from  time  to  time,  as 
may  be  necessary  for  the  purchase  of  lumber  for  my  account,  and  to 
consign  the  same  to  the  care  of  P.  W.  Scribner  &  Co.,  Whitehall,  N. 
Y. — A.  H.  Griswold."     Held,  we  think  the  authority  was  absolute. 
The  words,  "  as  my  agent "  do  not  refer  to  the  form  of  the  contract, 
but  to  the  capacity  in  which  Loveland  acted.     If  he  drew,  in  fact,  as 
agent,  it  was  not  material  whether  he  described  himself  as  such  or 
not ;   nor  was  it  made  material  by  the  power  of  attorney.     So  the 
words  •'  as  may  be  necessary  "  are  not  words  of  condition,  but  mean 
to  the  extent  necessary,  and  the  words  "  for  the  purchase  of  lumber," 
etc.,  refer  to  the  business  in  which  the  agent  is  emploj'ed,  and  do  not 
constitute  a  condition  precedent,  which  a  party  taking  the  paper  upon 
the  faith  of  the  authority  must  show  has  been  performed.     Merchants' 
Bank  of  Canada  v.  Griswold,  72  N.  Y.  472. 

83.  There  is  a  distinction,  I  think,  between  a  conditional  authority 
to  draw  and  a  limitation  of  authority.     In  the  former  case  the  power 
cannot  be  exercised  at  all  without  showing  the  performance  of  the  con- 
dition ;  while  in  the  latter  it  may  be  exercised,  within  the  limits  pre- 
scribed, in  all  the  cases  where  the  authority  was  limited  in  amount, 
time  and  otherwise.     (Barney  v.   Worthington,  37   N.  Y.   112.)     In 
such  cases  the  authority  is  absolute  to  draw,  within  the  limit  pre- 
scribed.    In  this  case  the  power  cannot  be  said  to  be  general  and  un- 


16  MONROE'S  DIGEST 

limited.  It  is  restricted  to  the  amount  necessary  to  purchase  lumber 
for  the  defendant,  but  within  that  limit  is  absolute  and  unqualified. 
The  agent  must  determine  the  necessity  of  the  amount  required  for 
the  business  in  which  he  is  engaged,  and  not  the  person  who  parts 
with  his  money  on  the  faith  of  the  authority.  It  was  proved  on  the 
trial  that  the  money  was  loaned  to  be  used  in  that  business.  The 
agent,  by  procuring  the  discount  upon  the  faith  of  the  power  of  attor- 
ney, represented  that  it  was  to  be  used  in  the  business  of  the  defend- 
ant, and  that  the  amount  was  necessary.  Ibid. 

84.  As  was  said  in   North  River  Bank  v.  Aymer  (3  Hill,  267)r 
"  The  plaintiffs  were  apprised  that  Jacob  D.  Thurber  had  power  to 
make  and  endorse  notes  in  the  business  of  the  testator,  and  notes  actu- 
ally made  and  endorsed  by  the  attorney  and  purporting  to  have  been 
so  made  and  endorsed,  in  conformity  with  the  power,  were  presented 
to,  and  in  effect  discounted  by  the  plaintiffs.     This  act  was  equivalent 
to  an  express  declaration  that  the  notes  were  made  and  endorsed  in 
the  business  of  the  testator,"  and  the  court  held  that  the  principal  was 
bound  by  these  representations.     The  rule  was  authoritatively  formu- 
lated by  this  court  in  the  Schuyler  case  (34  N.  Y.  30),  as  follows: 
"  Where  the  authority  of  an  agent  depends  upon  some  fact  outside  the 
terms  of  his  power,  and  which,  from  its  nature,  rests  peculiarly  within 
his  knowledge,  the  principal  is  bound  by  the  representations  of  the 
agent,  although  false  as  to  the  existence  of  such  fact." 

85.  The  question  then  recurs,  whether  the  defendant  promised,  un- 
conditionally, to  accept  the  drafts.     Without  elaborating  that  ques- 
tion, I  think  it  must  be  regarded  as  settled  in  this  State  that  an  abso- 
lute authority  to  draw  is  equivalent  to  an  unconditional  promise  to 
pa}'  the  draft.     (37  N.  Y.  112  supra.      Ulster  Co.  Bank  v.  McFarlan, 
5  Hill,  433,  3  Den.  553;  Bank  of  Michigan  v.  Ely,  17  Wend.  510.) 
And  this  is  the  natural  and  necessary  implication.     Ibid. 

86.  The  declarations  and  representations  of  the  agent  at  the  time 
the  draft  was  discounted  are  part  of  the  res  gestse,  and  were  admissi- 
ble.    (3  Hill,  267). 

87.  In  Lanusse  v.  Baker,  3  Wheat.   146,  the  rule  is  concisely 
stated  as  follows :     "  When  a  general  authority  is  given  to  draw  bills 
from  a  certain  place  on  account  of  advances  there  made,  the  undertak- 
ing is  to  replace  the  money  at  that  place."     The  same  principle  was 
reiterated  in  6  Peters,  685,  and  was  sanctioned  in  First  Nat.  Bank  of 
Toledo  v.  Shaw,  61  N.  Y.  293 ;  see,  also,  5  Ch.  and  Finn  1.     The  au- 
thority in  this  case  was  to  draw  anywhere,  and  therefore  it  was  an  au- 
thority to  draw  in  Canada,  and  the  laws  of  Canada  must  govern.   Ibid. 

88.  Power  of  attorney,  authorizing  an  agent  to  sue  for  a  specific 
debt,  and  to  do  all  in  the  premises  that  the  principal  could  do,  carries 
with  it  the  power  to  make  the  suit  effective  by  attachment.     De  Poret 
v.  Gusman,  30  La.  930. 

89.  If  a  principal  constitute  an  agent  to  do  business  which  obvi- 
ously or  reasonably  cannot  be  done  by  the  agent  except  through  a  sub- 
agent  ;  or  if  there  is,  in  relation  to  that  business,  a  known  and  estab- 
lished usage  of  substitution,  in  either  case  the  principal  would  be  held 
to  have  expected  and  authorized  such  substitution.     Planters1  and 
Farmers1  Nat.  Bank  v.  First  Nat.  Bank  of  Wilmington,  75  Ind.  534. 

90.  As  ex  gr.  the  cashier  of  a  bank,  when  made  consignee  of  goods 


OF   STANDARD   DECISIONS.  17 

under  a  bill  of  lading,  may  libel  vessels  for  their  non-delivery.     The 
Thames,  14  Wall.  U.  S.  98. 

91.  Whatever  is  done  by  an  agent,  in  reference  to  the  business  in 
which  he  is  at  the  time  employed,  and  within  the  scope  of  his  authority, 
is  said  or  done  by  the  principal,  and  may  be  proved  as  well  in  a 
criminal  as  a  civil  case,  in  all  respects,  as  if  the  principal  were  the  actor 
and  the  speaker.     CliquoCs  Champagne,  3  Wall.  U.  S.  114. 

92.  An  agent  may  not  act  as  such  in  a  transaction  where  he  has 
an  interest  or  employment  adverse  to  his  principal.     Murray  v.  Beard, 
102  N.  Y.  505. 

93.  An  agent  employed  for  an  indefinite  period  may  be  discharged 
at  any  time.     Boogher  v.  Maryland  Life  Ins.  Co.,  8  Mo.  A  pp.  533. 

94.  Where  an  agent,  acting  within  the  scope  x>f  his  authority,  con- 
verts property  of  a  third  party  to  his  own  use,  the  principal  is  liable, 
though  he  never  authorized  or  ratified  the  wrong.      Veitinger  v.  Wink- 
ler,  8  Mo.  App.  562. 

95.  The  state  has  such  a  title  or  interest  in  a  draft  endorsed  to  the 
State  Treasurer  and  delivered  into  his  office  by  a  County  Treasurer  for 
payment  of  taxes  due  the  state,  that  an  action  may  be  maintained  in 
the  name  of  the  people  for  a  conversion  thereof.     A  clerk  in  the  office 
of  the  State  Treasurer  without  authority  endorsed  a  number  of  such 
drafts  and  negotiated  them.     Defendant  took  them  from  the  endorsees, 
collected  the  money  from  and  surrendered  them  to  the  drawees.     Held, 
that  defendant  was  liable  to  the  state  for  a  conversion  of  the  drafts ; 
that  it  could  not  claim  an  exemption  on  the  ground  that  it  took  them 
in  good  faith  solely  as  agent  and  in  the  course  of  a  public  employ- 
ment. 

96.  It  seems  that  the  State  Treasurer  may  delegate  the  power  to 
endorse  such  drafts  to  a  clerk  in  his  office  ;  it  is  not  an  act  involving 
the  exercise  of  judgment  or  discretion  and  it  is  not  one  of  the  official 
duties  presented  by  statute  which  must  be  performed  by  the  Treasurer 
in  person.     Also  held,  that  the  state  was  not  estopped  by  a  finding  that 
the  ti'easurer  might  by  ordinary  care,  have  discovered  and  prevented 
the  fraudulent  acts  of  the  clerk  in  endorsing  and  diverting  the  drafts. 
Two  drafts  which  came  into  the  treasurer's  office  in  the  same  manner 
as  the  other  were  endorsed  in  blank  by  the  deputy  treasurer  who  had 
authority,  and  were  delivered  to  the  clerk  for  deposit  in  one  of  the 
legally  designated  deposit  banks.     The  clerk  filled  up  the  blanks  in  the 
endorsement  with  the  name  of  the  cashier  of  a  firm  of  private  bankers 
and  delivered  them  to  that  firm,  defendant  took  and  collected  them. 
Held,  that  defendant  was  not  liable  for  conversion  of  them  ;  that  the 
drafts  were  not  received  and  were  not  to  be  regarded  as  money  in  the 
hands  of  the  treasurer,  and  he  was  not  bound  to  place  them  in  the  de- 
posit banks  but  could  collect  them  in  any  manner  he  chose ;  and  that 
therefore  the  fact  that  they  were  in  the  hands  of  private  bankers  was 
not  such  notice  to  defendant  that  they  had  been  wrongfully  diverted 
as  to  charge  it  with  bad  faith  in  dealing  with  them.     People  v.  Bank 
of  North  America,  15  N.  Y.  547. 

91.  Without  special  authority,  an  agent  can  only  receive  payment 
of  the  debt  due  his  principal  in  the  legal  currency  of  the  country,  or  in 
bills  which  pass  as  money  at  their  par  value  by  the  common  consent. 
Ibid. 

2 


18  KONKOE'S  DIGEST 

98.  The  value  of  goods  sold  by  a  commission  merchant  contrary  to 
instructions  of  his  principal  may  be  recovered  under  the  common  count 
for  goods  sold  and  delivered.     Woodward  v.  Suydam,  11   Ohio,  361 ; 
Newman  v.  McGregor,  5  Ohio,  349 ;  7  Johns,  N.  Y.  132 ;  12  Wend.  N. 
Y.  38. 

99.  The  agent  is  not  bound  to  account  to  the  principal  until  the 
time  fixed  by   the  terms  of  the  agency  or  a  demand  by  the  principal. 
Commencement  of  suit  is  sufficient  demand.     Leake  v.  Sutherland,  25 
Ark.  219.     Powers  of  agent.     Anderson  v.  State,  22  Ohio  State,  305 ; 
Fat-man  v.  Leet,  41  Ind.  135;  Butler  v.  Maples,  9  Wall.  766. 

100.  The  provision  of  the  act  of  Congress  exempting  United  States 
bonds,  etc.,  from  taxation,  under  state  authority,  is  complied  with  by 
exempting  the  bonds  as  issued  ;  and  a  deduction  of  their  par  value  in- 
stead of  their  market  value  from  the  personal  estate  is  proper.     People 
Exrel  Ins.  Co.  v.  Conirs,  76  N.  Y.  65. 

101.  Where  a  party  to  a  negotiable  instrument  intrusts  it  to  an- 
other for  use  as  such  with  blanks  not  filled,  it  carries  on  its  face  an  im- 
plied authority  to  complete  it  by  filling  them,  but  not  to  vary  or  alter 
its  material  terms  by  erasing  what  is  written  or  printed  as  a  part 
thereof,  nor  to  pervent  its  scope  or  meaning  by  filling  the  blanks  with 
stipulations  repugnant  to  what  was  plainly  and  clearly  expressed  in 
the  instrument.     Angle  v.  Northwestern  Mutual  Life  Ins.  Co.,  92  U. 
S.  330. 

102.  It  is  a  principal  of  universal  application,  that  an  unauthorized 
material  alteration  of  a  written  instrument  renders  it  void.     Ibid. 

103.  An   agent   or  attorney,  unless   specially  authorized,  cannot 
bind  his  principal  by  a  submission  to  arbitration.     McPherson  v.  Cox, 
86  N.  Y.  472. 

104.  Where  a  principal  has  executed  and  deposited  with  his  agent 
negotiable  obligations  to  be  issued  by  the  latter  in  certain  contingencies 
which  do  not  occur  and  the  agent  refuses  to  return  them  on  demand, 
an  action  in  equity  may  be  maintained  by  the  principal  against  the 
agent  to  compel  a  surrender  of  the  obligations  and  for  damages  arising 
from  the  detention  or  in  case  a  surrender  cannot  be  made  for  the  value 
of  the  instruments  as  valid  obligations.     West  R.  R.  Go.  v.  Bayne,  75 
N.  Y.  1. 

105.  A  simple  contract,  executed  by  an  authorized  agent  in  his 
own  name,  as  agent,  is  binding  upon  his  principal.     Hill  v.  Miller,  76 
N.  Y.  32. 

106.  The  government  is  not  bound  by  the  act  or  declaration  of  its 
agent,  unless  it  manifestly  appears  that  he  acted  within  the  scope  of 
his  authority,  or  was  employed  in  his  capacity  as  a  public  agent  to  do 
the  act  or  make  the  declaration  for  it.      Whiteside,  et  al.  v.  United 
States,  93  U.  S.  247. 

107.  Individuals  as  well  as  courts,  must  take  notice  of  the  extent 
of  authority   conferred  by  law  upon  a  person  acting  in  an  official 
capacity.     Ibid. 

108.  It  is  a  well-established  principal  of  law  that  an  agent  is  re- 
quired to  have'  and  to  exercise  a  degree  of  skill  and  knowledge  neces- 
sary to  the  proper  performance  of  the  duties  he  assumes  or  undertakes. 
If  lie  has  not  the  requisite  skill  or,  having  it,  neglects  to  exercise  it,  he 
is  responsible  to  his  principal  for  the  results  of  his  ignorance  or  neglect. 


OF   STANDARD   DECISIONS.  19 

Dartnell  v.  Howard,  4  B.  and  C.  Eng.  345 ;  also,  Denew  \.  Davenell, 
3  Camp.  451. 

109.  Where  special  instructions  are  given  to  aw  agent  he  is  re- 
quired to  regard  them  in  every  particular.     Where  none  are  given,  or 
where  they  are  incomplete  or  indistinct,  his  duty  will  depend  upon  the 
understanding  of  the  parties  to  be  inferred  from  the  circumstances  of 
the  undertaking,  or  the  general  usuage  or  established  customs  in  rela- 
tion to  such  business.     Goarrier  v.  Bitter,  4  Wash.  U.  S.  C.  C.  549. 

110.  An  agent  cannot,  in  a  general  sense,  delegate  his  authority  to 
another,  unless  duly  authorized  by  his  superior  so  to  do.     And  when 
without  such  authority  he  employs  subagents   in  the  performance  of 
his  assumed  duty  he  can  be  held   responsible  to  his  principal  for  all 
damages    caused    by    their  incapacity   or  negligence.     Alexander  y. 
Alexander,  2  Ves.  Eng.  643  ;  also,  Lyon  v.  Jerome,  26  Wend.  N.  Y.  485. 

111.  There  are  exceptions  to  this  rule,  as  where  from  the  very  cir- 
cumstances of  the  case  it  is  known  to  be,  and  is  necessary  to  employ 
flubagents,  as  where  the  business  is  such  that  the  agent  cannot  per- 
sonally attend  to  it,  the  assent  of  the  principal  to  the  employment  of 
subagents  is  implied.     Rossiter  v.  Trafalgar  Life,  A.  A.  27   Bear. 
Eng.  377. 

112.  The  agent  is  of  course  required  under  these  circumstances  to 
use  due  diligence  and  circumspection  in  making  his  selection  of  capable 
fiubagents. 

113.  The  bank  must  present  all  paper  at  the  proper  place  for  pay- 
ment at  maturity,  and  if  payment   is  neglected  or  refused  it  must,  if 
necessary,  have  such  paper  protested,  and  give  notice  as  soon  as  pos- 
sible, to  the  holder  or  depositor  thereof  alone,  unless  there  be  some  gen- 
eral  usage  to  the  contrary  where  such   paper  is  payable.     Bank  of 

U.  S.  v.  Goddard,  5  Mas.  U.  S.  366  ;  State  Bank  of  Troy  v.  Bank  of 
the  Capital,  41  Barb.  N.  Y.  343  ;  Hayes  v.  Birks,  3  Nos.  and  P. 
Eng.  699  ;  Phipps  v.  Milbury  Bank,  9  Mete.  Mass.  79. 

114.  A  contrary  view  has  been  held  by  other  courts  as  follows: 
Bank   of  Washington  v.    Triplett,   1     Pet.    25  ;  Smedes  v.   Bank  of 
Utica,  20  Johns.   N.  Y.  372,  3  Cow.  N.  Y.  662  ;   West  Branch  Bank 

v.  Fulmer,  3  Barr.  Eng.  299  ;  Fabens  v.  Mercantile  Bank,  23  Pick. 
Mass.  330  ;  McKinster  v.  Utica  Bank,  9  Wend.  N.  Y.  46,  Wend. 
473  ;  Thompson  v.  Bank  of  South  Carolina,  3  Hill,  S.  C.  77. 

115.  Where  a  bank  receives  a  paper  for  collection,  and  which  is 
payable  at  a  distant  locality,  it  has  been  held  that  the  acceptance  by 
the  bank  of  paper  for  collection  at  some  distant  place  implied,  upon  a 
reasonable  construction,  no  other  agreement  than  that  it  should  be 
forwarded  with  due  diligence  to  some  competent  agent  to  do  what  was 
necessary  in   the  premises  ;  that  the  person  leaving  the  bill  was  aware 
that  the  bank  could  not  personally  attend  to  the  collection,  and  must 
therefor  send  the  bill  to  some  distant  agent,  and  must  be  assumed  to 
have  authorized  the  transmission  that  the  foreign  bank  or  notary  was 
•directly  responsible  to  him  for  any  default,  since  they  became  his  agent 
for  the  collection,  and  that  the  bank  first  receiving  the  paper  could  not 
be   reasonably   regarded   as  responsible  for  the  fidelity  of  the  agent 
abroad.     Allen  v.    The  Merchants1  Bank,  15  Wend.  N.  Y.  484.     The 
above  case  was  appealed  to  the  court  of  errors,  where  the  decision  of 
the  supreme  court  was  reversed.     22  Wend.  215. 


20  MONROE'S  DIGEST 

116.  The  case  was  thus  finally  appealed  to  the  Senate,  then  (1839) 
the  highest  appellate  court  in  the  state  of  New  York,  where  the  deci- 
sions of  the  Supreme  Court  was  reversed ;  this  reversal  has  been  re- 
spected by  the  courts  of  New  York,  with  an  exception,  where  the  Su- 
preme Court  adhered  to  its  previous  decision.     Bank  of  New  Orleans 
v.  Smith,  3  Hill,  N.  Y.  560. 

117.  The  Court  of  Appeals,  which  is  now  the  highest  appellate 
court  in  the  state  of  New  York,  has  sustained  the  decision  of  the  State 
Senate,  and  thus  established  the  decision  as  the  law  within  its  jurisdic- 
tion.    The  court  held  that  where  a  country   bank  sends  to  its  cor- 
responding bank  in  Albany,  for  collection,  an  indorsed  bill  of  exchange 
payable  in  New  York,  and  the  latter  bank  indorses  it  and  transmits  it 
to  its  own  corresponding  bank  in  New  York  City  for  the  purpose,  the 
Albany  bank  alone  is  answerable  for  any  negligence  in  presenting  the 
bill  by  which  the  iudorser  fails  to  be  charged.     Montgomery  County 
Bank  v.  Albany  City  Bank,  3  Seld.  N.  Y.  459. 

118.  "  Where  the  Bank  of  Wilmington  was  the  owner  of  a  bill  of 
exchange,  payable  at  sight,  at  Troy,  and  indorsed  and  transmitted  it 
to  the  plaintiff  under  an  arrangement  .by  which  the  latter  collected 
and  retained  the  proceeds  of  paper  thus  remitted  to  it,  and  with  the 
same  redeemed  the  circulating  notes  of  and  paid  drafts  drawn  by  the 
Bank  of  Wilmington,  and  the  plaintiff  indorsed  and  transmitted  the 
bill  to  the  defendant,  its  correspondent  in  New  York,  for  collection  and 
the  same  purpose,"  the  court  held  the  bill,  if  collected  by  the  Troy 
City  Bank,  or  if  the  same  was  lost  by  the  omission  of  the  latter  to- 
charge  the  drawer  and  indorsers.       Commercial  Bank  of  Penn.    v. 
Union  Bank,  1  Kern.  N.  Y.  203  ;    Walker  v.  Bank  of  N.  Y.,  5  Seld.  N. 
Y.   382;  Hoard  v.    Garner,  3   Sandf.  N.  Y.  179;  Downer  v.  Madison 
County  Bank,  6  Hill,  N.  Y.  648  ;  Beeves  v.  State  Bank,  8  Ohio  St.  465  ;. 
American  Express   Co.  v.  Haire,  21   Ind.  4  ;  Mackasy  v.  Ramsay s,  9 
El.  and  Fin.  Eng.  818  ;  Ayrault  v.  Pacific  Bank,  47  N.  Y.  573  ;    Wart  v. 
Woolley,  3  Barn,  and  C.  Eng.  439  ;   Thompson  v.  Bank  of  S.  C.,3  Hill,. 
S.  C.  77. 

119.  The    contrary  has  been  decided  by  a   Massachusetts  court, 
wherein  it  was  held  that  an  action  could  not  be  maintained  against  the 
deposit  bank.     That  when  a  note  is  deposited  with  a  bank  for  collec- 
tion, which  is  payable  at  another  place,  the  whole  duty  of  the  bank 
so  receiving  the  note  in  the  first  instance  is  reasonably  to  transmit 
the  same  to  a  suitable  bank  or  other  agent  at  the  place  of  payment. 
The  defendants  had  performed  their  whole  duty  of  the  bank  so  receiv- 
ing the  note  in  the  first  instance  is  reasonably  to  transmit  the  same  to- 
a  suitable  bank  or  other  agent  at  the  place  of  payment.     The  defend- 
ants had  performed  their  whole  duty  when  they  transmitted  the  note 
to  a  solvent  bank  in  good  standing,  and  were  not  responsible  for  the 
misfeasance  or  negligence  of  that  bank.     Fabens  v.  The  Mercantile 
Bank,  23  Pick.   Mass.   330 ;  Dorchester,  &c.,  Bank  v.  New  England 
Bank,   1  Cush.   Mass.  186  ;    Warren  Bank  v.  Suffolk  Bank,  10  Cush. 
Mass.  582  ;    Whitney  v.  Merchants1  Union  Express  Co.,  104  Mass.  152. 

120.  A    similar    case  was  decided  in   Connecticut  in  1837.      The 
owner  of  an  accepted  bill,  payable  in  New  York,  indorsed  and  deposited 
it  with  the  East  Hacldam  Bank  for  collection.     It  was  sent  by  the  de- 
posit   bank,    without  its  indorsement,  to  the  Merchants'  Ex.  Bank 


OF   STANDARD  DECISIONS.  21 

in  New  York  ;  upon  presentation  and  non-payment,  the  collecting  bank 
sent  notice  to  the  drawer  alone.  The  East  Haddam  Bank,  supposing 
the  bill  had  been  paid,  gave  the  amount  it  called  for  to  the  holder. 
-Shortly  after  the  bank  discovered  the  error,  and  instituted  suit  for  the 
recovery  of  the  money  from  the  bill  owner.  The  court  held  that  the 
bank  was  not  precluded  from  recovering  because  of  its  not  having  in- 
dorsed the  bill  or  advised  the  collecting  bank  of  the  holder's  place  of 
residence,  or  on  the  ground  that  it  was  responsible  to  the  holder  for  the 
default  of  the  collecting  bank,  or  by  reason  of  its  having  paid  over  the 
money  to  him.  East  Haddam  Hank  v.  Scoville,  12  Conn.  303. 

121.  An  Illinois  court  held  that  a  bank  receiving  a  bill  or  note  for 
collection,  where  its  transmission   to  another  place  is  necessary,  dis- 
charges its  duty  by  sending  it  in  due  course  and  reason  to  a  competent 
reliable  agent,  with  proper  instructions  for  its  collection.     The  ^Etna 
Ins.  Co.  v.  The  Alton  City  Bank,  25  Ills.  362. 

122.  A  Wisconsin  court  held  that  the  contract  implied  from  the  re- 
ceipt by  a  bank,  of  a  note  for  collection,  payable  at  a  distance  from  its 
place  of  business,  is  not  absolutely  to  make  due  presentment  of  the 
note  and  give  due  notice  of  its  non-payment,  but  to  place  it  in  the 
.hands  of  some  competent  and  responsible  agent  for  that  purpose ;  and 
that  if  the  bank  exercise  reasonable  care  and  skill  in  selecting  such 
Agent,  it  is  not  liable  for  his  default.     Stacy  v.  Dane  Co.  Bank,  12 
Wis.  629. 

123.  In  Mississippi,  the  court  held  that  a  bank  receiving  com- 
mercial paper  for  collection,  discharges  its  duty  in  case  of  non-pay- 
ment, by  placing  the  paper  reasonably  in  the  hands  of  a  notary  public 
•with  proper  instructions,  and  in  such  case  the  notary  is  the  subagent 
-of  the  owner,  and  directly  responsible  to  him.     Bowling  v.  Arthur,  34 
Miss.  41. 

124.  The   Maryland   court   held   the   same   in    Citizen's  Bank  v. 
ffowell,  8   Md.  530.     In  Pennsylvania,  the  same  in  Bellemue  v.  Bank 
•of  U.  S.,  4  Whart.  105 ;  Mechanics1  Bank  v.  Carp,  4  Rawle,  Pa.  383  ; 
same  in  Louisiana,  Hyde  v.  Planters'  Bank,  17  La.  560. 

125.  The    question     of    responsibility    under     these    conflicting 
opinions  has  remained  undecided  for  years,  the  courts  of  one  state 
holding  to  one  side,  and  those  of  another  to  the  other.     The  supreme 
-court  of  the  United  States  has  now  settled  the  question.     It  has  de- 
cided the  case  as  follows  :     A  creditor  residing  in  Nebraska  left  a  claim 
with  a  collecting  agent  for  collection,  the  agency  sent  the  claim  to  a 
law  firm  in  Nebraska  ;  the  lawyers  procured  a  judgment  by  confession 
Against  the  debtor,  well  knowing  that  he  was  insolvent.     The  proceeds 
of  his  judgment  were  sent  by  them  to  the  collecting  agency,  but  not 
paid  over  to  the  creditor  by  the  agency.     In  four  months  after  this 
confession  of  judgment,  proceedings  were  commenced  in  bankruptcy 
against  the  debtor  in   Nebraska,  who  was  declared  bankrupt.     When 
his    assignee  in  bankruptcy   brought  action  against  the  New  York 
creditor  to  recover  back  the  amount  of  the  judgment,  the  question  of 
responsibilitj"  rested  on  the  fact  whether  the  lawyers  who  knew  of  the 
insolvency  of  the  debtor  at  the  time  of  the  confession  of  judgment, 
were  or  were  not  the  agents  of  the  creditor.     If  they  were,  he  must 
be  liable,  since  the  knowledge  of  the  agent  is  the  knowledge  of  the 
principal.     The  Supreme  Court  held  that  the  attorneys  employed  were 


22  MONROE'S  DIGEST 

the  agents  of  the  collection  agents,  which  assumed  the  collection  of  the- 
claim,  and  that,  therefore,  the  assignee  could  not  recover.  Hoover, 
assignee  v.  Wiese,  13  Albany  Law  Journal,  164.  The  decision  in  New 
York,  Ohio,  and  in  England,  which  hold  the  bank  receiving  commer- 
cial paper  for  collection,  are  cited  with  approval  and  followed  as 
authorities  upon  the  question  to  be  passed  upon,  although  other  cases- 
were  cited,  including  Bradstreet  v.  Everson,  72  Pa,  St.  124  ;  Lewis 
v.  Peck,  10  Ala  142  ;  Cobb  v.  Beake,  6  Ad.  and  E.  Eng.  930. 

126.  In  the  United  States  Circuit  Court  for  the  Northern  District 
of  Illinois,  the  above  doctrine  was  held.     The  court  held  that  the  law,, 
as  now  settled  by  the  Supreme  Court  of  the  United  States,  in  Hoover  v. 
Wiese,  et  al.,  91,  308,  is,  that  when  a  bank  receives  commercial  paper 

for  collection,  whether  payable  at  the  place  where  such  bank  is  situ- 
ated, or  at  some  distant  place,  in  the  absence  of  special  agreement,, 
there  is  an  implied  contract  on  the  part  of  the  bank,  arising  from  the 
undertaking  that  it  will  take  all  steps  necessary  for  the  collection  of 
the  paper,  and  in  case  of  non-pa3'ment,  for  charging  the  parties  thereto- 
— that  is,  its  position  is  that  of  an  independent  contractor,  and  the 
instruments  employed  by  such  bank  in  the  business  contemplated  are 
its  agents,  and  not  the  agents  of  the  owner  of  the  note.  Its  duty  is 
not  confined  simply  to  that  of  using  care  and  diligence  in  the  selection 
of  its  agents  to  perform  the  undertaking  which  it  has  accepted. 

127.  It  is  further  responsible  for  the  neglect  and  default  of  the 
corresponding  bank,  notary,  or  other  agent  employed  by  it  or  by  its 
agents,  and  is  liable  to  the  holder  for  the  money  when  the  same  is  col- 
lected by  any  of  its  agents  or  subagents.     Hyde  v.  First  National 
Bank,  Chic.  Leg.  News,  262 ;  Alb.  L.  ,T.,  340. 

128.  But  the  other  state  courts  before  which  the  question  has  arisen^ 
and  the  Supreme  Court  of  the  United  States,  hold  to  the  doctrine 
stated  above,  i.  e.,  to  the  rule  which  governs  a  bank  in  the  selection  of 
a  notary  where  the  paper  is  pa3*able  in  the  place  of  the  receiving  bank,, 
that  the  duty  of  the  bank  ceases  with  the  selection  of  a  proper  notarj7. 
The  reasoning  is  this :  when  a  party   deposits  his  paper  in  his  own 
bank  for  collection,  which  paper  is  made  paj-able  at  a  distant  place,  he 
knows  or  is  bound  to  know,  that  the  receiving  bank,  in  order  to  do  its 
duty  in  collecting,  has  to  transmit  the  paper  to  its  correspondent  at  or 
nearest  the  place  where  the  paper  is   payable,  in  order  that  the  same 
may  be  duly  presented  for  payment,  and  if  not  paid,  due  demand  and 
notice  can  be  given  ;  for  it  cannot  be  supposed  that  the  receiving  bank 
would  send  its  own  agent  or  notary  to  the  distant  place,  perhaps  thou- 
sands of  miles,  to  present  the  paper  for  payment,  and  if  not  paid  to 
duly  protest  it.     And  it  entered  into  the  implied  contract,  made  with 
the  receiving  bank  at  the  time,  that  it  should  transmit  the  paper  to  its 
correspondent  nearest  to  the  place  where  the  paper  is  made  payable ; 
that  when  the  receiving  bank  so  transmits  the  paper,  the  correspondent 
bank  or  its  notary  becomes  the  agent,  not  of  the  transmitting  bank, 
but  of  the  true  owner  of  the  paper,  and  is  responsible  to  him  for  its 
neglects  or  defaults. 

129.  Of  c6urse  the  receiving  bank  must  not  be  guilty  of  any  negli- 
gence in  selecting  an   improper  bank  to  which  to  transmit  the  paper. 
Some  of  the  leading  cases  that  hold  this  doctrine  are — Dorchester  and 
Milton  Bank  v.  New  England  Bank,  1  Cush.  Mass.  177  ;  Lawrence  v. 


OF   STANDARD  DECISIONS.  23 

Stonington  Bank,  6  Conn.  521;  JEtna  Ins.  Go.  v.  Alton  City  BankT 
25  Ills.  243;  Bank  of  Washington  v.  Triplett,  1  Peters,  U.  S.  25;  de- 
cision by  Chief  Justice  Marshall. 

130.  And  Mr.  Morse,  in  his  treatise,  after  going  fully  into  the  doc- 
trine, comes  to  the  same  conclusion. 

131.  Checks  drawn  on  another  bank  located  in  the  same  place  && 
the  deposit  bank,  and  deposited  for  collection,  must  be  presented  for 
payment  before  the  close  of  banking  hours,  on  the  business  day  next 
succeeding  that  upon  which  they  are  deposited,  unless  otherwise  duly 
instructed.     Alexander  v.  Burch field,  7    Mass,  and   G.  1,061;   Bod- 
dington  v.  Schlencker,  4  B.  and  Ad.  Eng.  752 ;  Moule  v.  Brown,  4  Bing. 
Eng.  266. 

132.  The  depositor  of  paper  has  no  legal  right  to  draw  on  the  bank 
of  deposit  for  collection  before  the  payment  for  the  same  has  been  re- 
ceived by  the  deposit  bank,  although  it  is  customary  with  many  banks 
to  allow  it  to  be  done.     Scott  v.  Ocean  Bank,  23  N.  Y.  13. 

133.  The  bank  having  placed  the  amount  due  on  the  note  deposited 
for  collection,  does  not  deprive  the  depositor  of  his  ownership  of  such 
note.     Giles  v.  Perkins,  9  East.  Eng.  13. 

134.  Where  the  collection  passes  through  several  banks,  each  is 
bound  to  the  holder  for  its  failure  to  transmit  to  its  next  correspondent, 
and  is  liable  to  a  suit  direct  from  him.     Lawrence  v.  Stonington  Bank, 
7  Conn.  521. 

135.  But  this  would  not  be  the  doctrine  in  New  York  or  Ohio. 

136.  The  ratification  by  one  of  the  unauthorized  act  of  another 
operates  upon  the  act  ratified  precisely  as  though  authority  to  do  the 
act  had  been  previously  given,  except  where  the  rights  of  third  parties 
have  intervened  between  the  act  and  the  ratification.     Cook  v.  Tullisr 
18  Wall.  332. 


AGREEMENTS. 

137.  Agreement  which  is  forbidden  by  law,  expressly,  or  by  impli- 
cation, or  which  is  against  public  policy,  will  not  be  enforced  in  a  court 
of  law.     Neither  will  an  executed  contract  resting  on  such  a  consider- 
ation  be   relieved  against  in  equity.     Batcliffe  v.  Smith,  13  Bush. 
Ky.  172. 

138.  The  defendants  promised  to  furnish  to  the  plaintiffs  sulphuric 
acid  for  their  "  works."     Neither  the  terms  of  payment  nor  the  time 
for  which  the  arrangement  should  continue,  was  agreed  upon.     Held, 
that  either  side  to  the  contract  could  terminate  it  at  pleasure.     Cumb. 
Bone  Co.  v.  Atwood  Lead  Co.,  63  Me.  167. 

139.  When  a  debtor,  upon  whose  obligation  installments  of  inter- 
est which  had  from  time  to  time  become  due  remain  unpaid,  entered 
into  an  agreement  to  pay  the  said  obligation  with  compound  interest,, 
the  promise  is  met  by  the  payment  of  simple  interest  upon  the  prin- 
cipal unpaid  at  the  date  of  the  agreement,  and  simple  interest,  also, 
upon  the  total  arrears  of  interest  at  the  time  due  and  unpaid  ;  it  does 
not   authorize  the  compounding  of  interest  annually  for  the  whole 
period,  which  interest  has  become  due  by  the  terms  of  the  obligation. 
The  mere  rendering  of  an  account  does  not  make  it  an  account  stated,. 


24  MONROE'S  DIGEST 

and  an  omission  to  object  to  it  raises  only  a  presumption  of  assent, 
which  may  be  rebutted,  by  circumstances  tending  to  a  contrary  infer- 
ence. Toland  v.  Sprague,  12  Pet.  330;  Guernsey,  et  al.  v.  Rexford, 
Adm.  ApllL,  18  Sickels,  N.  Y.  631. 

140.  A  parol  promise  to  pay  the  balance  of  purchase  money  due 
under  articles  of  agreement,  made  at  the  time  of  the  execution  of  a 
deed,  is  founded  on  a  good  consideration  and  will  support  a  personal 
action  for  said  debt.     Baumv.  Tonkin,  110  Pa.  569;  Scott  v.  Fields, 
7  Watts,  Pa.  360;  Clarke  v.  Stanley,  10  Barr.  Pa.  479. 

141.  A  creditor  of  a  firm  cannot  maintain  an  action  upon  an  agree- 
ment made  with  the  firm  by  one  not  a  member,  to  pay  a  portion — for 
instance,  one  quarter — of  its  indebtedness  ;  as  no  one  creditor  can  show 
from  the  contract  that  it  was  intended  for  his  benefit  or  covers  any 
part  of  his  debt.      Wheat,  v.  Bice,  97  N.  Y.  296. 

142.  Agreement  of  life  insurance  company  to  pay  agent  commis- 
sions on  renewals,  or  a  gross  sum  in  lieu  thereof,  is  terminated  by  dis- 
solution of  company.     Hepburn  v.  Montgomery,  97  N.  Y.  617. 


ALTERATION  OF  INSTRUMENT. 

143.  If  an  instrument  be  materially  altered  after  its  execution,  no 
money  can  be  had  upon  it  unless  it  was  accidental,  or  done  by  the  party 
claiming  under  it,  or  with  his  consent.     An  alteration  after  delivery, 
and  whilst  in  the  custody  of  the  party  asserting  a  right  under  it, 
devolves  upon  him  the  duty  of  explanation.     Everman  &  Co.  v.  Robb, 
52  Miss.  653. 

144.  In  an  action  upon  a  promissory  note,  the  answer  admitted  the 
making  of  a  note  for  the  amount,  and  payable  at  the  time  of  the  note 
:set  forth  in  the  complaint,  but  averred  that  said  note,  after  its  delivery 
to  plaintiff,  was  materially  altered  by  him,  without  defendant's  knowl- 
edge or  consent,  by  changing  the  date  thereof  from  April  1,  1872,  to 
April  1,  1873.     This  answer  was  struck  out,  on  motion,  as  sham  and 
frivolous.     Held  error  ;  that  the  alteration  alleged  was  material ;  also, 
that  it  was  not  the  province  of  the  court  to  decide  the  question  of  fact 
raised  by  the  answer,  upon  mere  inspection  of  the  note.     Rogers  v. 

Vosburgh,  87  N.  Y.  228. 

145.  Any  alteration  of  a  note  by  the  holder  unknown  to  the  maker 
•destroys  all  interest  of  the  person  so  altering  the  note  in  the  same,  and 
makes  him  responsible  for  the  amount  due  on  the  note  to  all  innocent 
holders.     The  insertion  of  "  with  interest,"  or  otherwise  increase  the 
"value  of  the  note  would  be  forgery.     Ed. 

146.  When  a  partnership  is  in  the  habit  of  indorsing  negotiable 
paper,  having  blanks  left  for  the  date,  and  gives  the  paper  so  indorsed 
to  a  person  to  use — he  to  fill  the  blank  when  he  wishes  to  use  it — the 
firm  is  liable  on  the  paper  with  the  date  filled  in,  when,  thus  complete, 
it  is  held  by  innocent  bona  fide  holders  for  value.     Michigan  Bank  v. 
Eldred,  9  Wall.  U.  S.  544. 

141.  Evidence  that  by  the  articles  of  partnership  one  partner  had 
no  right  to  indorse  negotiable  paper,  is  inadmissible  to  defeat  a  bona 
.fide  holder  of  such  paper  indorsed  with  the  firm  name  by  a  member  of 


OF   STANDARD   DECISIONS.  25 

the  firm,  and  taken  by  such  bona  fide  holder  for  value,  and  without 
notice  of  the  articles.     Ibid. 

148.  The  power  to  fill  the  blanks  for  dates  implies  in  favor  of  such 
holders  a  power  in  the  person  trusted,  to  change  the  date,  after  a  note 
lias  been  written,  and  before  it  is  negotiated.  Ibid. 


AMENDMENT. 

149.  Of  complaint,  after  judgment  and  satisfaction,  by  adding  new 
cause  of  action,  is  in  the  discretion  of  the  court.     Hatch  v.  Cent.  Nat. 
Bank,  78  N.  Y.  487. 

150.  Upon  the  trial  of  an  action  upon  a  contract,  defendant  moved 
and  was  permitted,  without  objection,  to  amend  his  answer  by  setting 
up  an  overpayment   upon  the  contract,  and  demanding  judgment  for 
the  amount  thereof.     It  was  proved  that  said  overpayment  was  made 
after  the  commencement  of  the  action.     Held,  that  defendant  was  en- 
titled to  judgment  for  the  amount  of  such  overpayment;  that  under 
the  Code  of  Procedure  (§  150,  sub.  1,  which  was  in  force  at  the  time 
of  the  trial),  as  it  was  a  claim  arising  out  of  the  contract  upon  which 
the   action   was   brought,   it   was  a   proper  counter  claim ;    that  de- 
fendant might  have  been  allowed  to  set  it  up  by  supplemental  answer 
(§  177);   that  the  amendment  was  in  effect  a  supplemental  answer, 
and  gave  the  same  right  to  judgment.      Howard  v.  Johnston,  82  N. 
Y.  271. 


APPEAL. 

151.  A  trustee  of  a  fund   for  the  security  of  an  indebtedness  to 
others,  who  as  such  is  plaintiff  in  an  action  to  enforce  such  indebtedness, 
may  appeal  from  a  judgment  which  reduces  and  limits  the  number  of 
those  who  are  creditors  upon  the  fund  ;  he  is  aggrieved  by  the  judg- 
ment when  a  real  claim  is  not  added  into  the  amount  adjudged  to  be 
due;  and  a  real  claimant  is  shut  out  by  it  from  a  share  in  the  proceeds. 
Bockes  v.  Hathorn,  78  N.  Y.  222. 

152.  After  the  satisfaction  of  a  judgment  in  favor  of  plaintiff  it  is 
within  the  discretion  of  the  court  to  vacate  it  and  to  amend  the  com- 
plaint  by   adding   new   causes   of  action,  although  by  so  doing  the 
statute  of  limitations  is  avoided.      Hatch  v.  Cent.  Nat.  Bank,  78.  N. 
Y.  487. 

153.  When  the  lien  of  a  judgment  upon  real  estate  of  the  judg- 
ment debtor  has  been  suspended  during  appeal  by  order  of  the  court 
as  prescribed  by  the   Code  of  Civil  Procedure  (§  1256),  an  order  va- 
cating such  order  of  suspension  and  upon  its  face  purporting  to  restore 
the  lien  nunc  pro  tune  does  not  restore  it  as  against  a  creditor  whose 
judgment  was  docketed  in  the  interval  between  the  granting  of  the  two 
orders,   and  who  was  not  a  party  to  the  original  action  or  to  the  pro- 
ceeding vacating  the  order.     The  court  cannot  by  the  mere  process  of 


'26  MONROE'S  DIGEST 

\ 

vacating  its  order  destroy  liens  taken  upon  the  faith  of  it.     Harmon 
v.  Hope,  87  N.  Y.  10. 

154.  When   the  gravamen   of  an  action  as  set  forth  in  the  com- 
plaint  is   fraud   and    the   action  is  tried  upon   that   theory    without 
objection  or  exception,  and  the  judgment  is  adverse  to  the  plaintiff, 
the   question  as  to  whether  the  complaint  stated  facts  sufficient  to 
constitute   a   cause   of   action   on   contract,  and   whether  there  was 
evidence  sufficient  on  the  trial  to  sustain  such  a  cause  of  action  can- 
not be  considered  on  appeal  to  this  court.     Salisbury  v.  Howe,  87  N. 
Y.  128. 

155.  A   question   not   presented   on   trial   cannot   be  heard  here. 
Salisbury  v.  Howe,  87  N.  Y.  128. 

156.  It  seems  that  in  an  action  in  the  nature  of  a  creditor's  suitr 
the  amount  of  the  judgment  upon  which  it  is  based  measures  the  mat- 
ter in  controversy,  and  if  less  than  $500,  the  judgment  in  the  creditor's 
suit  is  not  appealable  to  this  court  unless  an  appeal  is  allowed  by 
the  Supreme  Court.     (Code,  §  191,  sub.  3).    Payne  v.  Becker,  87  N. 
Y.  153. 

157.  An  injunction  order  having  been  issued  in  this  action,  restrain- 
ing defendant,  its  officers,  etc.,  from  doing  certain  acts,  an  order  was 
subsequently  granted,  directing  that   an  attachment  as  for  contempt 
issue  against  G.,  its  president,  returnable  at   Special  Term,  at  a  day 
named.     Held,  that  the  order  affected  no  substantial  right  of  defend- 
ant ;  and,  therefore,  was  not  reviewable  upon  appeal  by  it  to  this  court. 
A.  &  P.  Tel.  Co.  v.  B.  &  0.  R.  R.  Co.,  87  N.  Y.  355. 

158.  It  is  no  defence  to  an  action  on  an  undertaking  given  to  stay 
execution  under  the  Code  of  Procedure   (§  355),  by  executors  on  ap- 
peal from  judgment  against  them  as  such,  that  sufficient  assets,  did  not 
come  to  the  hands  of  the  executors  to  pay  the  judgment.     Yates  v. 
Burch,  87  N.  Y.  409. 

159.  Under   the   provision   of  said    Code    (§    348)  requiring   ten: 
days'  notice  to  "  the  adverse  party  of  the  entry  of  the  order  or  judg- 
ment  affirming   the  judgment   appealed   from,"  before  bringing  suit 
upon   an   undertaking   given   to   stay    proceedings   on  appeal  to  the 
General  Term,  the  fact  that  after  entry  of  judgment  and  service  of 
notice  thereof,  the  sum  of  costs  was  reduced  upon  retaxation,  did  not 
require  the  service  of  a  new   notice  before  bringing  suit.     Yates  v. 
Burch,  87  N.  Y.  409. 

160.  Where,  after  the  commencement  of  an  action  against  a  rail- 
road corporation,  the  plaintiff    executed  a  release   of   the   cause   of 
action  and  of  the  costs  therein,  and  also  signed,  in  person,  a  stipu- 
lation    discontinuing     the    action,     and     consenting    to    the    entry 
of   an    order    of    discontinuance    on    filing    the    stipulation,    which 
order  was  entered,  ex   parte  and  without  the  special  direction  of  the 
court,  upon  filing  the  release  and  stipulation,  held,  that  while  the  court 
had  power  to  protect  the  plaintiff's  attorney  against  a  collusive  settle- 
ment in  fraud  of  his  rights,  the  plaintiff  was  not  entitled  to  have  the 
order  set  aside  on  account  of  her  attorney  ;  that  the  order,  having 
been  entered  upon   her  stipulation  expressly  authorizing  it,  she  could 
not  question  its  regularitj'  and  could  not  be  heard  to  make  the  objec- 
tion that,  having  appeared  by  attorney,  he  only  was  authorized  to  sign. 
a  stipulation  for  discontinuance ;  and  that  therefore  an  appeal  by  her 


OF  STANDARD   DECISIONS.  27 

from  an  order  denying  a  motion  to  set  aside  an  order  of  discontinu- 
ance was  not  sustainable.  McBratney  v.  R.  W.  &  0.  R.  R.  Co.,  87  N, 
Y.  467. 

161.  C.,  an  attorney,  on  the  employment  of  a  lunatic  over  whose 
person  and  estate  a  committee  had  been  appointed,  and  by  permission 
of  the  court,  made  an  application  to  supersede  the  commission,  which 
was  denied.     C.  then  applied  to  the  court  for  his  charges  and  disburse- 
ments.    A  portion  of  his  claim  was  allowed,  and  an  order  granted  di- 
recting its  payment.     The  committee  appealed  to  the  General  Termr 
and  on  January  15th,  1875,  after  argument  but  before  decision,  the  luna- 
tic died.     On  January  22d,  the  order  was  reversed  and  motion  denied. 
The  order  of  reversal  was  duly  entered  and  served  on  C.  February  25th, 
and  on  May  1st,  he  appealed  to  this  court.     In  June,  1879,  the  General 
Term,  by  order,  subtituted  "  January  5th,"  for  "  January  22d,"  as  the 
date  of  the  order  of  reversal.     C.   caused  the  order,  with  its  substi- 
tuted date,  to  be  reentered  on  September  21st,  1881,  and  on  September 
26th,  appealed  therefrom.     A  motion  was  thereafter  made  by  C.  for  an 
order  substituting  the  administrators  of  the  lunatic  in  the  proceedings 
in  place  of  the  committee,  who  had  also  died.     Held,  first,  that  to 
make  applicable  the  provisions  of  the  Code  of  Civil  Procedure  in  re- 
gard to  appeals  from  orders  where  a  party  "  has  died  since  the  making 
of  an  order  "  (§  1297),  it  was  necessary  for  the  moving  party  to  treat 
the  order  appealed  from  as  made  before  the  death  of  the  lunatic,  who 
alone  could  be  regarded  as  "  the  adverse  party  ;  "  that  the  service  of 
the  order  under  the  original  date  was  effectual  to  limit  the  time  of 
appeal,  and  the  time  expired  in  sixty  days  thereafter  ;  second,  that  the 
order  itself  was  not  appealable,  as  it  was  in  the  discretion  of  the 
court   below  ;  third,  upon   the   death    of  the   lunatic,  the   power  and 
functions  of  the  committee  ceased,  and  the  proceedings  abated  ;  any 
legal  claims  against  the  estate  could  thereafter  only  be  enforced  in  the 
manner  prescribed  by  law.     In  re  Becwith,  87  N.  Y.  503. 

162.  Under  the  Code  of  Civil  Procedure  (§  1337),  where  the  de- 
cree of  a  surrogate  in  proceedings  for  the  probate  of  a  will  is  affirmed 
by  the  General  Term  of  the  Supreme  Court,  this  court  has  no  jurisdic- 
tion, upon  appeal,  to  review  the  questions  of  fact  which  depend  upon 
conflicting  evidence,  but  is  confined  exclusively  to  questions  of  law. 
In  re  Ross,  87  N.  Y.  514. 

163.  It  seems  that,  unless  special  provision  authorizing  it  can  be 
found  in  the  law,  there  can  be  no  review  in  this  court  of  questions  of 
fact,  depending  upon  conflicting  evidence,  in  any  case.     In  re  Ross,  87 
N.  Y.  514.  . 

164.  It  seems,  also,  that  the  only  special  provision  authorizing  the 
review  here  of  such  questions  of  fact  is  that  which  provides  for  a  re- 
view upon  the  facts,  where  the  General  Term  has  reversed,  upon  ques- 
tions of  fact,  a  judgment  entered  upon  the  report  of  a  referee,  or  upon 
a  decision  of  the  court  on  trial  without  a  jury.     In  re  Ross,  87  N.  Y. 
514. 

165.  The  provision  of  said  Code  relating  to  appeals  from  decrees 
of  surrogates  (§2586),  providing  that  "where  an  appeal  is  taken  upon 
the  facts,  the  appellate  court  has  the  same  power  to  decide  the  ques- 
tions of  fact  which  the  surrogate  had,"  etc.,  applies  exclusively  to  ap- 
peals to  the  Supreme  Court.     In  re  Ross,  87  N.  Y.  514. 


28  MONROE'S  DIGEST 

166.  Where,  in  proceedings  before  a  surrogate  to  prove  a  will, 
•erroneous  evidence  is  received,  the  decree  will  not  be  reversed  "  unless 
it  appears  to  the  appellate  court  that  the  exceptant  was  necessarily 
prejudiced  thereby."     (Code,  §  2545).     In  re  Boss,  87  N.  Y.  514. 

167.  Where  a  judgment  entered  upon  the  report  of  a  referee  is  re- 
versed by  the  General  Term,  and  the  order  of  reversal  does  not  certify 
that  it  was  founded  upon  error  of  fact,  it  is  to  be  assumed  on  appeal  to 
this  court  that  the  reversal  was  for  some  error  of  law.      Ward  v.  Craig, 
SI  N.  Y.  550. 

168.  The  respondent,  however,  is  entitled  to  sustain  the  reversal 
by  showing  any  error  of  law  which  is  fatal  to  the  judgment,  whether 
made  the  reason  of  the  action  of  the  General  Term,  or  wholly  unnoticed 
by  it.      Ward  v.  Craig,  87  N.  Y.  550. 

169.  Where  it  does  not  appear  in  an  order  of  General  Term  revers- 
ing a  judgment  entered  upon  the  report  of  a  referee,  that  the  reversal 
was  upon  questions  of  fact,  the  only  inquiry  on  appeal  from  the  order 
to  this  court  is  whether  it  rests  upon  any  error  of  law.    (Code,  §  1338). 
Davis  v.  Leopold,  87  N.  Y.  620. 

170.  Under  the  Code  of  Civil  Procedure  (§  1337),  the  decision  of  a 
surrogate  upon  a  question  of  fact  arising  on  conflicting  evidence  upon 
the  final  accounting  of  an  executor  is  not  reviewable  here.     Davis  v. 
Clark,  87  N.  Y.  623. 

171.  The  provision  of  said  Code  (§  2586),  declaring  that :  "  Where 
an  appeal  is  taken  upon  the  facts,  the  appellate  court  has  the  same 
power  to  decide  the  questions  of  fact  which  the  surrogate  had,"  etc., 
has  reference  only  to  appeals  from  surrogate's  decrees  or  orders  to  the 
Supreme  Court.     Davis  v.  Clark,  87  N.  Y.  623. 

172.  It  is  in  the  discretion  of  the  court  below,  whether  to  set  aside 
a  subpoena  duces  tecum;  so  also,  whether  permission  shall  be  granted 
defendant  to  inspect  and  copy  plaintiff's  books  ;  and  the  exercise  of 
this  discretion  is  not  reviewable  here.     Clyde  v.  Rogers,  87  N.  Y.  625. 

173.  It  seems,  that  the  clause  in  section  1003  of  the  Code  of  Civil 
Procedure  providing  that  an  error  in  the  admission  or  exclusion  of  evi- 
dence, etc.,  "  upon   the  trial  may,  in  the  discretion  of  the  court  which 
reviews  it,  be  disregarded   if  that  court  is  of  opinion  that  substantial 
justice  does  not  require  that  a  new  trial  should  be  granted,"  has  no 
application  to  a  trial  before  a  referee.     Luders  v.  Rasmus,  87  N.  Y. 
631. 

174.  When  erroneous  ruling  evidently  harmless,  not  ground  for 
reversal.     See  Nolan  v.  B.  C.  &  N.  R.  R.  Co.,  87  N.  Y.  63. 

175.  Costs  of  appeal  when  in  discretion  of  General  Term.     See  In 
re  Bradner,  87  N.  Y.  171. 

176.  When  order  allowing  counsel  fees  in  proceedings  to  ascertain 
damages  by  reason  of  injunction  is  reviewable  here.     See  Newton  v. 
Russell,  87  N.  Y.  527. 

177.  On  appeal  to  this  court  from  a  judgment  entered  on  a  decision 
of  the  court  or  the  report  of  a  referee,  no  fact  can  be  considered  for  the 
purpose  of  reversing  the  judgment  unless  it  is  either  stated  in  the  find- 
ings, or    was    requested   to   be   found   on   uncontroverted  evidence. 
Thomson  v.  Bank  of  British  N.  America,  82  N.  Y.  1. 

178.  This  action  was  brought  to  recover  back  two  items  of  moneys 
alleged  to  have  been  extorted  from  plaintiff  without  consideration  and 


OP  STANDARD   DECISIONS.  291 

wrongfully;  the  defences  were  a  denial  of  the  wrongful  acts  charged 
and  averments  that  one  of  the  items  was  paid  for  services  rendered  by 
a  bank  of  which  defendant  was  president,  and  that  the  payment  was  to- 
said  bank  and  not  to  defendant ;  as  to  the  other  item  that  it  was  a 
charitable  donation  to  a  church  of  which  defendant  was  treasurer,  and 
that  both  were  paid  voluntarily ;  evidence  was  given  on  the  trial  sup- 
porting the  defence  as  to  both  items.  Upon  appeal  from  an  order  or 
General  Term  reversing  a  judgment  in  favor  of  plaintiff  entered  on  the 
verdict  of  a  jury  and  granting  a  new  trial,  held,  that  assuming  the 
payments  were  made  without  consideration,  and  though  voluntarily 
made  could  be  recovered  back  (as  to  which  quoere),  yet  if  the  defend- 
ant was  not  guilty  of  the  wrongs  charged,  and  as  to  one  of  the  items 
simply  acted  as  agent  of  his  bank  hi  receiving  the  money,  and  the  pay- 
ment was  in  fact  to  the  bank  and  went  to  its  use  (which  facts  it  was- 
conceded  by  appellant's  counsel  were  to  be  assumed  in  favor  of  re- 
spondent), defendant  was  not  personally  liable  for  that  item,  but  the 
action  should  have  been  against  the  bank ;  that  at  least  as  to  so  much 
of  the  recovery  it  was  erroneous,  and  being  wrong  in  part  a  new  trial 
was  proper.  Appeal,  therefore,  dismissed.  American  National  Bank 
v.  Wheelock,  82  N.  Y.  118. 

179.  Upon  motion  in  an  action  of  foreclosure  by  a  junior  mortgagor 
to  be  subrogated  to  the  rights  of  the  plaintiff  upon  payment  of  his- 
mortgage,  it  was  a  question  at  issue,  as  to  whether  the  junior  mort- 
gage was  paid.     Held,  that  the  determination  of  the  court  below  was 
conclusive  upon  appeal.      Twombly  v.  Cassidy,  82  N.  Y.  155. 

180.  An  order  of  arrest  is  a  provisional  remedy  which  the  court 
may  grant  or  refuse  in  a  proper  case  within  its  discretion,  and  the 
exercise  of  this  discretion  is  not  reviewable  here.    Clarke  v.  Lourie,  82 
N.  Y.  580. 

181.  No  appeal  lies,  therefore,  to  this  court,  from  an  order  vacating 
an  order  of  arrest,  when  upon  any  view  of  the  facts  the  decision  can 
be  upheld.     Clarke  v.Lourie,  82  N.  Y.  580. 

182.  Unless  the  contrary  appears  in   the   order,  it   must   be  as- 
sumed that  it  was  made  in  the  exercise  of  such  discretion.     Clarke  v. 
Lourie,  82  N.  Y.  580. 

183.  The  opinion  of  the  court  below  cannot  be  resorted  to  for  the- 
purpose  of  determining  the  ground  on  which  it  was  based.     Clarke  v. 
Lourie,  82  N.  Y.  580. 

184.  The  point  that  in  action  on  lost  note,  bond  required  by  stat- 
ute was  not  given,  cannot  be  raised  for  first  time  on  appeal,  it  must  be 
presented  by  exception.     Fordham  v.  Hendrickson,  (Mem.)  84  N.  Y. 
654. 


APPLICATION  OF  PAYMENTS. 

185.  It  seems,  that  the  right  of  a  debtor  making  a  payment  to  di- 
rect upon  which  one  of  several  distinct  liabilities  or  demands,  held  by 
his  creditor,  it  shall  be  applied,  must  be  exercised  at  the  time  of  pay- 
ment ;  if  he  makes  a  payment  without  directing  at  the  time  as  to  its- 
appropriation,  the  money  becomes  absolutely  the  property  of  the  credi- 


SO  MONROE'S  DIGEST 

tor  and  he  may  apply  it  as  he  chooses.     Nat.  Bank  of  N.  v.  Bigler,  83 
N.  Y.  51. 

186.  So,  where  the  debtor  assigns  property  as  collateral  security 
generally  without  dictating  upon   what  demand  its  proceeds  shall  be 
applied,  he  cannot  bind  the  creditor  by  any  subsequent  direction,  but 
the  latter  may  apply  such  proceeds  to  any  of  the  demands  held  by  him 
which  are  due  at  the  time  the  money  is  received.     Nat.  Bank  of  N.  v. 
Bigler,  83  N.  Y.  51. 

187.  Where  money  is  collected  by  a  creditor  by  the  sale  of  collat- 
erals placed  in  his  hands  to  secure  several  distinct  items  of  indebted- 
ness, under  such  circumstances    that  neither  he  nor  the  debtor  pos- 
sesses the  right  to  determine  as  to  the  application,  the  power  devolves 
upon  the  court,  and  it  will  apply  the  money  upon  equitable  principles. 
Jones  v.  Benedict,  83  N.  Y.  79. 

188.  W.  H.  held  certain  notes  and  a  mortgage  as  security  for  an 
indebtedness  of  W.  F. ;  the  latter  was  dealing  with  and  was  indebted 
also  to  F.,  B.  &  Co.     To  secure  any  balance  which  might, atany  time,  be 
due  from    W.   F.  to  that  firm,  W.  H.  transferred  to  them  said  securi- 
ties, the  same  to  be  returned  to  him  when  such  balance  was  paid  ;  after- 
ward W.  H.  drew  drafts  upon  F.,  B.  &  Co.,  for  the  benefit  of  a  mining 
•corporation,  in  which  he  had  no  interest,  but  in  which  W.  F.  and  the 
plaintiff  were  stockholders,  W.   F.  being   its   superintendent;  these 
•drafts  were  accepted  by  said  firm  upon  an  agreement  that  the  notes  and 
mortgages  should  be  held  as  security  therefor;  and,  not  having  been 
paid  at  maturity,  were  taken  up  by  the  firm.     To  procure  an  extension 
of  the  time  of  payment  W.  F.  executed  his  notes,  payable  to  his  order, 
•which  were  indorsed  by   him,  by  plaintiff  and  by  other  stockholders, 
and   were   delivered  to  F.,  B.   &    Co.      The  stockholders,  including 
plaintiff  and  W.  F.,  subsequently  executed  an   agreement  by  which 
each  obligated  himself  to  pay  his  proportionate   share  of  liabilities 
assumed  for  the  benefit  of  the  corporation.     F.,  B.  &.  Co.,  recovered 
judgment  upon  the  stockholders'  notes,  and  subsequently   collected, 

upon  the  mortgage,  a  sum  sufficient  nearly  to  pay  the  balance  due 
them  from  W.  F.  In  an  action  brought  for  relief  against  said  judg- 
ment,, plaintiff  claiming  that  the  sum  so  collected  should  be  applied 
pro  rata  upon  the  debts  for  which  the  mortgage  was  held  as  security, 
.held,  that  whether  the  application  of  the  money  devolved  upon  the 
creditor  or  the  court,  equity  justified  its  application  upon  the  balance 
due  from  W.  F.  Jones  v.  Benedict,  83  N.  Y.  79. 


ASSESSMENT. 

189.  Under  the  provisions  of  the  statute  (1  R.  S.,  389,  §  5)  ex- 
empting agents  of  moneyed  corporations  or  capitalists  from  taxation 
•"  for  any  moneys  in  their  possession,  or  under  their  control,  transmit- 
ted to  them  for  the  purposes  of  investment,  or  otherwise,"  and  ex- 
empting demands  belonging  to  non-residents  of  the  State  sent  to  or  de- 
posited in  this  State  for  collection  (1  R.  S.,  419,  §  3),  foreign  capital 
sent  here  for  investment  is  protected  from  taxation,  whether  invested 
•or  uninvested,  and  whether  the  securities  received  therefor  are  takea 


OF   STANDARD   DECISIONS.  31 

away  or  remain  here  for  collection.     Williams  v.  Suprs.  Wayne  Co.,  78 
N.  Y.  561. 

190.  Under  the  Internal  Revenue  act  of  July,  1870,  interest  paid 
and  dividends  declared  during  the  last  five  months  of  the  year  1870, 
taxable,  as  well  as  those  declared  during  the  year  1871.  Blake  v. 
National  Bank,  23  Wall.  U.  S.  307. 


ASSIGNMENTS. 

191.  The  statute  provision  that  blank  assignments  shall  be  taken 
as  of  a  date  most  to  the  advantage  of  the  defendant,  only  applies  in  the 
absence  of  evidence   as   to  the  date  of  the  assignment.     Trieber  v. 

Com.  Bank  of  St.  Louis,  31  Ark.  128. 

192.  The  surety  in  a  bond,  upon  tender  of  the  debt,  is  entitled  un- 
der the  statute  to  an  assignment  of  the  bond,  if  demanded ;  and  a  re- 
fusal to  make  such  assignment  is  a  discharge  of  the  surety, per  se,  ir- 
respective of  the  question  whether,  in  consequence  of  such  refusal,  the 
surety  has  sustained  injury.     Merrikan  v.  Godwin,  et  al.,  2  Del.  236. 

193.  An  assignment  under  seal  and  duly  recorded,  of  wages,  by 
A.  to  "  J.  B.,  treasurer,"  to  secure  the  corporation  of  which  J.  B.  was 
treasurer,  for  goods  it  had  previously  sold  and  might  afterwards  sell 
to  A.,  is  valid.     Giles  v.  Ash,  123  Mass.  353. 

194.  Although  an  assignment  giving  preferences  is  void  under  the 
bankrupt  act,  under  the  conditions  therein  provided,  it  is  void  only  as 
to  persons  and  proceedings  under  that  act,  and  except  as  to  such  per- 
sons and  proceedings,  it  is  valid  as  ever.      Williams  v.  Pitts,  55  Howard, 
N.  Y.  331. 

195.  The  assignee  of  stock  in  an  insurance  company,  by  assign- 
ment and  delivery  of  the  certificate  of  stock,  and  notice  to  the  com- 
pany, has  a  superior  right  to  that  of  a  subsequent  attaching  creditor 
of  the  assignor,  although  there  be  a  valid  by-law  of  the  company,  em- 
bodied in  the  certificate,  that  the  stock  is  only  transferable  on  the 
books  of  the  company,  at  their  office,  on  surrender  of  the  certificate, 
the  charter  containing  no  provision  on  the  subject  of  the  assignment  of 
the  stock.     State  Ins.  Co.  v.  Gennett,  2  Tenn.  Eq.  100. 

196.  An  assignment  by  virtue  of  or  under  a  foreign  law  does  not 
operate  -upon  a  debt,  or  rights  of  action  as  against  a  person  in  this 
State.     Hibernia  Nat.  Bank  v.  Lacombe,  84  N.  Y.  367. 

197.  At  the  time  of  the  execution  of  an  assignment  for  the  benefit 
of  creditors  there  was  a  balance  standing  to  the  credit  of  one  of  the 
assignors  upon  the  books  of  another  bank ;  this  was  not  included  in 
the  inventory.     It  appeared  that  the  assignment  was  executed  and 
filed  on  Saturday ;  this  balance  was  withdrawn  the  next  Monday ;  it 
did  not  appear  by  whom  or  in  what  manner.     The  inventory  was  sub- 
sequently made  and  was  verified.     Held,  that  the  presumption  was 
that  the  balance  was  drawn  out  on  the  check  of  the  assignor,  executed 
prior  to  the  assignment ;  also,  that  a  failure  of  the  assignor  to  explain 
the  transaction  did  not  authorize  the  presumption  that  he  was  the 
owner  of  the  balance  at  the  time  of  the  assignment ;  that  until  proof 


32  MONROE'S  DIGEST 

was  given  sufficient  to  authorize  a  presumption  of  fraud,  the  assignor* 
were  not  bound  to  explain.     Schultz  \.  Hoagland,  85  N.  Y.  464. 

198.  The  assignee  of  a  mortgage,  after  condition  broken,  being  in 
possession  of  real  estate  mortgaged  and  also  being  the  holder  of  the 
note  secured  by  the  mortgage  and  the  assignee  thereof,  can  defend  his 
possession  under  the  mortgage,  in  ejectment  brought  by  the  mortgagor 
or  those  claiming  under  him.     Kilgour  v.  Gorkley,  83  111.  109. 

199.  A  creditor  who  fails  to  file  his  claims  with  the  assignee  within 
three  months  after  the  first  publication  of  the  notice  of  assignment  is 
not  entitled  to  share  pro  rata  in  the  dividends  of  the  estate.     In  the 
matter  of  the  assignment  of  Holt,  45  Iowa,  301. 

200.  Assignment  of  a  debt  carries  with  it  in  equity  an  assignment 
of  a  judgment  or  mortgage  by  which  it  is  secured.     Batesville  Insti- 
tute v.  Kauffman,  18  Wall.  U.  S.  151. 

201.  An  order  of  reference,  to  take  proof  as  to  charges  made  by 
creditors  against  an  assignee  for  the  benefit  of  creditors,  is  not  review- 
able  here,  as  it  is  an  order,  not  final,  made  in  a  special  proceeding. 
(Code  of  Civil  Procedure,  §  190,  subd.  3).     In  re  Friedman,  82  N.  Y. 
609. 

202.  An  assignment  for  the  benefit  of  creditors  contained  a  clause 
empowering  the  assignee  to  collect  the  "  choses  in  action  with  the  right 
to  compound  for  the  said  choses  in  action,  taking  a  part  for  the  whole,, 
when  he  shall  deem  it  expedient."     In  an  action  by  the  assignee  to  re- 
cover assigned  property  levied  upon  by  defendant  as  sheriff  by  virtue 
of  executions  against  the  assignor,  held,  that  the  clause  was  to  be  con- 
strued as  simply  authorizing  the  assignee  to  compromise  such  claims 
as  in  a  sound  discretion  the  interests  of  the  trust  required;  that  as  so 
construed,  the  clause  was  not  in  conflict  with  the  provision  of  the  act 
of  1877,  in  relation  to  such  assignments   (§  23,  chap.  466,  Laws  of 
1877),  which  permits  the   County  Court  to  authorize  an  assignee  to 
compromise  any  claim  or  debt  belonging  to  the  state ;  and  that  it  did 
not  invalidate  the  assignment.     Coyne  v.  Weaver,  84  N.  Y.  386. 

203.  A  general  assignment  for  the  benefit  of  creditors  authorized 
the  assignee  to  "  collect  the  notes,  accounts  and  choses  in  action  and 
the  taking  the  part  of  the  whole  when  the  party  of  the  second  part 
(the  assignee)  shall  deem  it  expedient  to  so  do."     In  an  action  by  the 
assignee  for  the  conversion  of  a  portion  of  the  assigned  property,  heldr 
that  said  provision,  literally  construed,  simply  authorized  the  assignee 
to  receive  payment  by  installments,  not  to  satisfy  a  debt  on  payment 
of  a  portion ;  but  even  if  the  effect  was  to  give  power  to  compromise 
it  did  not  invalidate  the  assignment.     McConnell  v.  Sherwood,  84  N. 
Y.  522. 

204.  The  assignment  authorized  the  assignee  "  to  compromise  with 
the  creditors  "  of  the  assignor  for  all  his  debts  and  liabilities  if  in  the 
opinion  of  the  assignee  "  it  would  be  advantageous  "  to  the  creditors 
and  the  assignor.     Held,  that  the  effect  and  intent  of  this  provision 
was  to  the  payment  of  debts  and  to  create  a  trust  for  the  assignor  and 
so  it  rendered  the  assignment  void.     (2  R.  S.  135,  §  1 ;  id.  137,  §  1). 
McConnell  v.  Sherwood,  84  N.  Y.  522. 

205.  A  majority  of  the  creditors  of  B.,  an  insolvent,  signed  an 
agreement  with  him  by  which  he  was  to  assign  all  his  property  for  the 
benefit  of  the  creditors  who  signed  the  agreement.     The  agreement 


OF   STANDARD   DECISIONS.  33 

•was  to  be  void  unless  signed  by  all  his  creditors.  An  assignment  was 
duly  made,  but  was  not  recorded  within  thirty  days.  H.  and  M.,  cred- 
itors who  did  not  sign  the  agreement,  and  McF.,  who  did,  obtained 
judgments  and  levied  on  and  sold  the  personal  estate  in  the  hands  of 
the  trustees,  under  the  assignment.  There  was  no  evidence  that  McF. 
had  done  anything  to  estop  himself  from  claiming  against  the  assign- 
ment. The  court  below  awarded  the  fund  raised  by  the  sale  to  H.,  M. 
and  McF.,  according  to  priority.  Held,  not  to  be  error.  Lane's  Ap- 
peal, 82  Penn.  St.  289. 

206.  A  deed  of  assignment  was  made  by  a  firm  whose  liabilities 
were  $596.41  and  whose  assets  were  $614.18,  to  an  assignee  in  trust 
for  the  creditors,  which  deed  contained  the  following  special  clause, 
viz :     "  The  assignee  shall  take  possession  of  the  property  transferred 
to  him,  sell  and  dispose  of  the  same  with  all  reasonable  diligence,  either 
at  public  or  private  sale,  for  the  best  prices  that  can  be  obtained  there- 
for, and  convert  the  same  into  money,  unless  the  indebtedness  of  the 
firm  can  be  paid  or  settled  otherwise  by  amicable  arrangement  between 
the  creditors  of  the  firm,"  etc.,  "  and  out  of  the  proceeds  of  such  sale, 
if  any  be  made,"  etc.     Held,  that  the  deed  of  assignment  was  void. 
Keevil  v.  Donaldson,  20  Kansas,  165. 

207.  An  assignment  for  the   benefit  of  creditors  vests  the  title 
forthwith  in  the  assignee,  though  ignorant  of  the  assignment.     The 
moment  an  assignment  for  the  benefit  of  creditors  is  placed  by  the  as- 
signor, or  any  one  interested,  in  the  office  of  the  recorder  of  deeds  of 
the  proper  county  and  within  the  prescribed  time,  the  beneficial  inter- 
est of  the  creditors,  the  cestuis  que  sustent,  is  completely  vested,  and  it 
is  totally  immaterial  when  the  assignee  accepts  the  trust  or  whether 
he  ever  accepts  it.     Mark's  Appeal,  85  Pa.  St.  231. 

208.  An  insolvent  debtor  may  make  an  assignment  of  all  of  his 
property  for  the  benefit  of  his  creditors,  and  he  may  make  preferences. 
Hauselt  v.  Vilmar,  76  N.  Y.  630. 

209.  If  the  assignment  be  free  from  fraud,  it  will  not  be  avoided 
because  it  will  incidentally  and  inevitably  hinder  and  delay  creditors  ; 
the  necessary  delay  incident  to  the  execution  of  the  trust  is  not  within 
the  meaning  or  condemnation  of  the  statute  (2  R.  S.  137,  §  1),  declar- 
ing void  conveyances  made  with   intent   to  hinder,  delay  or  defraud 
creditors.     Hauselt  v.  Vilmar,  76  N.  Y.  630. 

210.  While  every  person  is  chargeable  with  notice  of  bankruptcy 
proceedings,  legally  and  properly  conducted,  such  notice  is  only  for 
the  protection  and  efficacy  of  the  proceedings.     A  part}'  to  a  contro- 
versy, who  does  not  claim  under,  and  bases  no  right  upon  said  pro- 
ceedings, cannot  claim  that  the  opposite  party  is  charged  thereby  with 
any  notice  whatsoever.     Page  v.  Waring,    76  N.  Y.  463. 

211.  The  declarations  of  an  assignor  of  a  chose  in  action,  forming 
no  part  of  the  res  gestae,  are  not  competent  to  prejudice  the  title  of  his 
assignee,  whether  the  assignment  be  for  value,  or  merely  for  the  bene- 
fit of  creditors,  and  whether  the  declarations  be  antecedent  or  subse- 
quent to  the  assignment.     Truax  v.  Slater,  86  N.  Y.  630. 

212.  The  declarations  of  a  vendor  are  not  competent  to  affect  the 
title  of  his  vendee.     Tabor  v.  Van  Tassell,  86  N.  Y.  642. 

213.  A  surety  upon  the  bond,  given  as  required  by  the  act  of  1877 

8 


34  MONROE'S  DIGEST 

i(§  5,  chap.  466,  Laws  of  1877)  by  an  assignee  for  the  benefit  of  credi- 
tors, brought  an  action  in  his  own  name,  not  stating  it  was  for  the 
benefit  of  others,  against  the  assignee  alone  for  an  accounting  and 
settlement  of  the  trust ;  a  referee  was  appointed  therein  to  take  proof, 
with  directions  to  publish  a  notice  to  persons  having  claims  to  present 
them  with  vouchers  in  pursuance  of  section  786  of  the  Code  of  Civil 
Procedure.  It  was  also  provided  in  the  order  that  any  creditor  might 
object  to  a  claim  presented,  and  thereupon  the  referee  might  take  the 
proofs  and  report  as  to  its  validity.  Subsequently,  upon  petition  of 
•creditors,  the  county  judge  issued  a  citation  requiring  the  assignee  to 
appear  and  show  cause  why  a  settlement  of  his  accounts  should  not  be 
had.  Held,  that  an  order  was  improperly  granted  in  the  action  re- 
straining the  proceedings  before  the  county  judge;  that  said  section 
of  the  Code  only  authorizes  publication  of  notice  when  an  action  is 
brought  for  the  collective  benefit  of  creditors  and  this  was  not  such  an 
action;  that  no  creditor  could  be  bound  b3'  the  judgment,  nor  could 
the  purpose  of  the  proceeding  be  affected  in  the  action  ;  that  the  credi- 
tors were  in  no  sense  parties  to  the  action,  and  the  court  had  no  juris- 
diction over  them.  Schuele  v.  Reiman,  86  N.  Y.  270. 

214.  An  assignee  for  the  benefit  of  creditors  is  liable  for  ordinary 
negligence,  or  the  want  of  that  degree  of  diligence  which  persons  of 
ordinary  prudence  are  accustomed  to  exercise  in  their  own  business. 
In  re  Dean,  86  N.  Y.  398. 

215.  The  assets  transferred  by  an  assignment  for  the  benefit  of 
creditors  consisted  of  property  used  in  a  livery  business  and  debts  due 
the  assignor ;  there  were  chattel  mortgages  covering  the  property  for 
more  than  its  value.     The  assignee  carried  on  the  business  for  about 
two  months  at  a  loss,  and  then  sold  the  entire  propert}',  subject  to  the 
mortgages,  for  one  dollar.     Held,  that  upon  the  accounting  of  the 
assignee,  the  items  for  receipts  and  disbursements,  while  he  was  carry- 
ing on  the  business,  were  properly  rejected  ;  that  he  was  simply  author- 
ized to  convert  the  assets  into  money  and  distribute  it  among  the  credi- 
tors, and  the  estate  could  not  be  charged  with  a  loss  incurred  in  an 
unauthorized  use  of  the  property.     In  re  Dean,  86  N.  Y.  398. 

216.  Also  held,  that  the  assignee  was  not  entitled  to  commissions 
upon  the  value  of  the  mortgaged  property,  but  only  on  what  was 
received  therefor.     In  re  Dean,  86  N.  Y.  398. 

217.  Although  a  bond  and  mortgage  may  be  transferred  by  mere 
delivery,  there  must  be  an  intention  so  to  transfer  accompanying  the 
delivery.     When  the  intention  is  to  have  a  written  assignment,  a  mere 
manual  delivery  does  not  pass  title.     Strause  v.  Josephthal,  77  N.  Y. 
'622. 

218.  State  courts  have  jurisdiction  of  an  action  by  an  assignee  in 
bankruptcy  to  set  aside  and  have  declared  void  a  chattel  mortgage  exe- 
•cuted  by  the  bankrupt,  on  the  ground  that  it  constitutes  a  fraudulent 
preference  within  the  bankrupt  act,  and  to  compel  an  accounting  on 
the  part  of  the  mortgagee;  it  is  not  a  matter  or  proceeding  in  bank- 
ruptcy within  the  meaning  of  section  711  of  the  U.  S.  Revised  Statutes. 
Ansley  v.  Patterson,  77  N.  Y.  156. 

219.  It  seems,  that  an  account  may  be  assigned  in  the  same  manner 
as  a  chattel,  and  what  will  pass  title  to  the  latter  will  be  equally  effect- 
ual as  to  the  former.     Truax  v.  Slater,  86  N.  Y.  630. 


OF   STANDARD   DECISIONS.  35 

220.  The  remedy  given  by  the  bankrupt  act  (U.  S.  R.  S.,  §  5120), 
toy  application  to  the  District  Court  which  granted  a  discharge,  to 
annul  it,  applies  only  to  cases  where,  upon  some  of  the  grounds  speci- 
fied, the  creditor  could  have  successfully  opposed  the  granting  of  the 
discharge,  had  he  known  of  the  facts  at  the  time  of  the  application. 
Portion  v.  Lawrence,  77  N.  Y.  207. 

221.  An  action  for  the  conversion  of  securities,  pledged  to  the  de- 
fendant as  collateral  security  for  a  loan,  is  barred  by  the  defendant's 
discharge  in  bankruptcy.     Hennequin  \.  Clews,  77  N.  Y.  427. 

222.  It  seems,  that  a  power  of  attorne}'  authorizing  the  assign- 
ment of  mortgages,  impliedly  includes  the  assignment  of  bonds  accom- 
panying the  mortgages.     Feldman  v.  Beier,  78  N.  Y.  294. 

223.  It  seems,  that,  under  the  bankrupt  act  as  amended  in  1874 
(U.  S.  R.  S.  §  5128),  an  assignee  in  bankruptcy,  in  order  to  set  aside  an 
assignment  of  property  made  by  the  bankrupt  to  a  creditor,  must  estab- 
lish not  only  that  the  person  claiming  under  the  assignment  received 
it  with  "  reasonable  cause  to  believe  "  the  assignor  u  insolvent,"  but 
that  he  received  it  "  knowing  that  such  assignment  was  made  in  fraud 
•of  the  provisions  of  the  act."     The  "  reasonable  cause  to  believe  "  the 
insolvency  may  rest  upon  conjecture,  but  the  knowledge  of  the  fraud 
must  be  established  as  a  fact.     Guernsey  v.  Miller,  80  N.  Y.  181. 

224.  Of  personal  property  after  cause  of  action  for  conversion 
thereof  has  accrued  gives  assignee  right  of  action ;  also  when  consid- 
eration   of  assignment    cannot    be   inquired  into  by   third   parties. 
McKeage  v.  H.  F.  Ins.  Co.,  81  N.  Y.  39. 

225.  The  assignment  of  an  attorney's  receipt  of  a  claim  for  col- 
lection, carries  with  it  an  equity  to  the  proceeds  of  the  judgment.     The 
•effect  of  such  an  assignment  is  that  the  judgment  creditor  becomes  but 
a  mere  trustee,  having  no  right  to  be  the  judgment  creditor  in  himself. 
After  notice  the  debtors  could  not  rightfully  pay,  except  to  the  owner 
and  holder  of  the  order.     Richardson  &  May  v.  Lightcop,  52  Miss.  508. 

226.  The  assignment  of  a  promissory  note  before  maturity,  raises 
the  presumption  of  a  want  of  notice  of  any  defence  to  it ;  and  this  pre- 
sumption stands  till  it  is  overcome  by  sufficient  proof.     Carpenter  v. 
Lougan,  16  Wall.  U.  S.  271. 

227.  Where,  for  a  valuable  consideration  received  from  the  payee, 
^.n  order  is  drawn  upon  a  third  person,  payable  out  of  a  particular 
fund  then  due  or  to  become  due  from  him  to  the  drawer,  the  delivery 
of  the  order  to  the  payee  operates  as  an  assignment  pro  tanto  of  the 
fund  ;  the  drawee  is  bound,  after  notice  thereof,  to  apply  the  fund,  as 
it  accrues,  to  the  payment  of  the  order,  and  the  payee  may  by  action 
oonipel  such  application.     Brill  v.  Tuttle,  81  N.  Y.  454. 

228.  Where  a  draft  is  drawn  generally,  to  be  paid  by  the  drawee 
in  the  first  instance  on  the  credit  of  the  drawer,  the  designation  by  the 
-drawer  of  a  particular  fund  out  of  which  the  drawee  may  subsequently 
be  reimbursed,  does  not  convert  the  draft  into  an  assignment  of  the 
fund,  and   the  payee  can  have  no  action  thereon  against  the  drawee, 
unless  he  duly  accepts.     Brill  v.  Tuttle,  81  N.  Y.  454. 

229.  Where  a  particular  fund  to  accrue  in  future  is  designated  in 
the  instrument,  and  the  language  thereof  is  ambiguous,  evidence  of  the 
-surrounding   circumstances  may  be  resorted  to  for  the  purpose  of  de- 
termining whether  the  intention  was  that  the  payment  should  only  be 


86  MONROE'S  DIGEST 

made  out  of  the  designated  fund,  or  whether  the  direction  to  pay  wa» 
intended  to  be  absolute,  and  the  fund  was  mentioned  only  as  a  means 
of  reimbursement.  Brill  v.  Tuttle,  81  N.  Y.  454. 

230.  A.  &  Co.  being  engaged  in  repairing  a  house  for  defendant,, 
for  a  valuable  consideration,  executed  and  delivered  to  plaintiffs  the 
following  instrument,  directed  to  defendant :     "  Pay  Brill  and  Russell 
three  hundred  dollars,  and  charge  same  to  our  account,  for  labor  and 
materials  performed  and  furnished  in  the  repairs  and  alterations  of  the 
house  in  which  you  reside,  in  the  village  of  Mohawk."     In  an  action 
upon  the  instrument,  it  appeared  that  the  work  was  nearly  done  when 
the  instrument  was  executed ;   the  testimony  was  conflicting  as  to  the 
amount  then  due.     Previous  to  its  delivery  to  the  plaintiffs,  one  of 
them,  with  the  drawer,  called  upon  the  defendant  and  requested  him  to 
accept  an  order  for  the  $300,  or  give  plaintiffs  a  note  or  some  security 
therefor,  which  he  declined  to  do,  immediately  thereupon  the  order  ia 
question  was  given ;  this  defendant  refused  to  pay  or  to  recognize, 
Held,  that  the  order  did  not  necessarily  require  a  construction  that  it 
was  a  request  to  advance  the  sum  specified ;  that  the  direction  thereinr 
in  connection  with  the  surrounding  circumstances,  indicated  the  intent 
to  have  been  simply  to  direct  payment  of  such  sums  as  were  or  might 
become   due   to  the  drawers  on  the  account  for  repairs,  up  to  the 
amount  specified  ;  that  thus  construed,  the  order  was  an  assignment  of 
so  much  of  the  fund ;  and  that  a  voluntary  payment  by  defendant  to 
the  drawers,  after  notice  of  plaintiffs'  rights,  was  in  his  own  wrong, 
and  was  no  defence.     Brill  v.  Tuttle,  81  N.  Y.  454. 

231.  Under  an  assignment  for  the  benefit  of  creditors,  the  assignee 
is  merely  the  representative  of  the  debtor  and  must  be  governed  by  the 
express  terms  of  his  trust.     In  re  Lewis,  81  N.  Y.  421. 

232.  An   assignment  of  the   property  of  a   debtor,  in  trust    for 
creditors,  executed  in  the  name  of  the  debtor  and  duly  acknowledged 
by  an  attorney  duly  constituted  for  that  purpose,  is  valid  under  the 
act  of  1860  (chap.  340  of  the  Laws  of  1860),  and  effectual  to  vest  in  the 
assignee  the  title  to  the  assigned  property.     Lowenstein  v.  Flaurandr 
82  N.  Y.  494. 

233.  The  record  of  an  assignment  of  a  mortgage  is  constructive 
notice  to  all  persons  of  the  rights  of  the  assignee,  as  against  any  sub- 
sequent acts  of  the  mortgagee  affecting  the  mortgage  ;  it  protects  as 
well  against  an  unauthorized  discharge  as  against  a  subsequent  assign- 
ment by  the  mortgagee.      Viele  v.  Judson,  82  N.  Y.  32. 

234.  After  the  commencement  of  this  action,  plaintiff  assigned  to 
R.  and  A.  the  claim  upon  which  it  was  brought ;  thereafter  plaintiff 
was  adjudged  a  bankrupt  and  an  assignee  of  his  property  appointed  j 
judgment   was   subsequently   recovered,  and   after  it  was  perfected^ 
plaintiff  died  intestate,  leaving  no  property,  real  or  personal.     No  ad- 
ministrator of  his  estate  has  been  appointed.     Upon  notice  to  defend- 
ants' attorneys  and  to  the  widow  and  next  of  kin  of  the  decedent,  a 
motion  was  made  on  behalf  of  R.  and  A.  that  they  be  substituted  as- 
plaintiffs,  which  was  granted  ;  defendants  appealed.     On  argument  at 
General   Term  the  respondent  produced  and  filed  a  stipulation  of  the 
assignee  in  bankruptcy  waiving  notice  of  motion  and  all  objection  to 
the  order.     Held,  that  the  order  was  properly  affirmed  ;  that  the  court- 
had  a  right  to  proceed  without  the  appointment  of  an  administrator  of 


OF   STANDARD  DECISIONS.  37 

the  original  plaintiff;  also  that  the  stipulation  was  properly  received 
And  considered  by  the  General  Term,  tichell  v.  Devlin,  82  N. 
Y.  333. 

235.  An  assignment  of  an  account  may  be  made  by  oral  agree- 
ment, without  writing,  or  any  written  statement  of  the  claim  assigned  ; 
jand,  if  founded  on  a  valid  consideration,  vests  in  the  assignee  a  right  to 
proceed  in   his  own  name  for  the  collection  of  the  debt.     Bisley  v. 
Phenix  Bank,  83  N.  Y.  318. 

236.  So,  also,  an  oral  assignment  for  a  valid  consideration  of  a 
portion  of  a  debt  is  valid.     Risley  v.  Phenix  Bank,  83  N.  Y.  318. 

237.  Where,  concurrently  with  the  giving  of  a  check  for  a  portion 
•of  the  amount  standing  to  the  credit  of  the  drawer  upon  the  books  of 
•defendant,  there  was  an  oral  agreement  between  the  drawer  and  payee, 
by  which  the  former,  for  a  valuable  consideration,  agreed  to  assign  so 
much  of  the  indebtedness  of  the  bank  to  him  as  was  represented  by  the 
•check,  and  the  check  was  given  to  enable  the  payee  to  collect  and  re- 
ceive the  portion  of  the  debt  assigned,  held,  that  the  check  was  not  the 
•contract  between  the  parties,  and  so  did  not  render  oral  evidence  of  the 
agreement  inadmissible  ;  and  that  the  parol  assignment  was  sufficient 
to  vest  in  the  plaintiff  a  title  to  the  portion  of  the  debt  assigned. 
JRisley  v.  Phenix  Bank,  83  N.  Y.  318. 

238.  Plaintiff  presented  the  check,  and  demanded  payment,  Jan- 
uary 4th,  1865,  notifying  defendant  that  so  much  of  the  claim  of  the 
drawer  as  was  represented  by  the  check  had  been  transferred  to  him; 
•defendant's  president  promised  to  pay  on  presentation  by  some  person 
known  to  the  bank.     On  the  next  dajr  when  the  check  was  again  pre- 
sented, defendant  refused,  to  pay,  on  the  ground  that  on  the  morning 
of  that  day  the  debt  had  been  seized  by  the  United  States,  in  pursuance 
-of  proceedings  instituted  on  that  day,  under  the  confiscation  acts  of 
Congress.     These  proceedings  were  set  up  as  a  defence,  and  on  the 
trial  defendant,  to  sustain  the  defence,  offered  in  evidence  the  record  of 
a  District  Court  of  the  United  States,  showing  that  the  deposit  to  the 
•credit  of  the  drawer  was  attached  in  proceedings  against  the  estate, 
property,  etc.,  of  the  bank  of  G.  (the  drawer),  on  deposit  with  the  de- 
fendant  on   January  5th,  1865,  and    that   defendant  paid  over  to  the 
marshal,  in  pursuance  of  a  decree  of  said  court  in  such  proceedings,  the 
"whole  amount  of  the  credit.     The  assignment  to  plaintiff  was  made  in 
May,  1861,  before  the  passage  of  the  confiscation  acts.     Held,  that  the 
record  constituted  no  defence,  and  was  properly  excluded ;  that  if 
notice  to  defendant  was  necessary  to  complete  plaintiff's  title,  sufficient 
notice  was  given  the  day  prior  to  the  seizure  ;  that  the  plaintiff  was  not 
concluded  by  the  adjudication  of  the  District  Court  to  the  effect  that 
the  property  seized  belonged  to  the  bank  of  G. ;  also  that  the  District 
Court  acquired  no  jurisdiction  under  said  acts  to  proceed  for  the  for- 
feiture of  a  debt  owing  to  a  corporation.     Risley  v.  Phenix  Bank,  83 
N.  Y.  318. 

239.  Defendant,  S.  E.  Reassigned  to  plaintiff  a  certificate  of  stock 
in  a  manufacturing  corporation  "  as  security  for  the  payment  of  any 
demands  "  plaintiff  "  may  from  time  to  time  have  or  hold  against"  E. 
W.  H.     S.  E.  H.  was  the  wife  of  E.  W.  H.,  who,  at  the  time  the  assign- 
ment was  executed,  was   largely  indebted  to  the  plaintiff  and  was  on 
the  verge  of  actual  insolvency.     In  an  action  to  foreclose  plaintiff  s  lien 


88  MONROE'S  DIGEST 

upon  the  stock  pledged,  held,  that  the  assignment,  by  its  terms,  in~ 
eluded  and  secured  all  demands  had  and  held  by  plaintiff  against  E., 
after  its  execution,  as  well  as  those  existing  at  that  time  ;  and  that  the 
circumstances  disclosed  this  to  have  been  the  intent  of  the  parties ; 
also  that  the  assignment  was  a  continuing  security  ;  and  that  an  ex- 
tension of  time,  by  renewals  in  the  ordinary  course  of  business,  granted 
by  plaintiff  to  E.  W.  H.  for  payment  of  any  of  the  debts,  did  not  dis- 
charge the  lien  upon  the  stock.  Mer.  Nat.  Bank  v.  Hall,  83  N.  Y.  338. 


ASSUMPSIT. 

240.  Assumpsit  lies  only  on  a  claim  of  ownership.  One  who  has 
only  a  mortgage  lien  on  goods  cannot  bring  assumpsit  for  their  value 
against  one  who  has  taken  them  to  satisfy  a  claim.  Randall,  et  al.  v, 
Higbee,  37  Mich.  40. 


ATTACHMENT. 

241.  Property  assigned  cannot  be  reached  on  attachment  based  on 
the  charge  that  the  assignment  was  made  to  defraud  creditors,  if  the 
property  has  changed  its  form.     That  is,  moneys  arising  from  assigned 
claims  cannot  be  attached,  though  the  claims  could  have  been  reached 
had  the  attachment  been  levied  before  they  were  changed  into  money. 
Matter  of  Freel,  assignee  of  Foley  &  Co.,  55  How.  N.  Y.  386. 

242.  Attachment  cannot  be    issued  against  a  non-resident    firm. 
The  statute  must  be   strictly  followed.     Dobell  v.  Loker,  1   Handy, 
Ohio,  574. 

243.  An  order  in  an  attachment  suit  that  a  plaintiff  has  discon- 
tinued his  attachment  by  taking  judgment  on  the  merits  without  filing" 
a  replication  to  a  plea  to  the  attachment,  and  striking  the  cause  from 
the  calendar  therefor,  is  a  final  and  appealable  order.     Hemphill  \v 
Collins,  (111.)  7  N.  E.  Rep.  496. 

244.  Under  the  provision  of  the  Code  of  Civil  Procedure  (New 
Code,  §  682),  giving  a  person   having  a  lien  upon  property  attached,, 
acquired  subsequent  to  the  attachment  a  right  to  apply  to  vacate  or 
modify  the  writ,  he  may  make  application  on  the  ground  of  the  insuffi- 
ciency of  the  affidavits  upon  which  the  writ  was  issued.     Steuben  Co. 
Bank  v.  Alberger,  75  N.  Y.  179. 

245.  No  authoriy  is  given  by  the  Code  of  Civil  Procedure  to- 
order,  on  motion  of  the  attaching  creditor,  a  person  holding  propertj7 
of  one,  against  whom  an  attachment  has  been  issued,  to  deliver  it  to 
the  sheriff.     Hall  v.  Brooks,  89  N.  Y.  33. 

246.  A  debt  created  by  an  award  made  in  this  state,  when  debtor 
resides  here,  has  its  status  in  this  state,  and  cannot  be  affected  by  for- 
eign attachment.      Williams  v.  Ingersole,  89  N.  Y.  508. 

247.  A  levy  by  virtue  of  an  attachment  upon  a  promissory  note 
creates  no  lien  thereon,  unless  at  the  time  the  attachment  debtor  has  a- 
legal  title  thereto.     Anthony  v.  Wood,  96  N.  Y.  180. 


OF   STANDARD   DECISIONS.  39 

248.  In  an  action  brought  by  the  defendants  herein  against  S.T 
plaintiff's  assignor,  and  others,  an  attachment  against  the  property  of 
the  defendants  was  granted  upon  affidavits  making  a  prima  facie  case, 
and  upon  a  full  compliance  with  all  the  formal  requirements,  on  the 
ground  that  defendants  were  about  to  assign,  dispose  of  and  secrete 
their  property,  with  intent  to  defraud  their  creditors.     The  attachment 
was  levied  upon   property  of  S.     The  defendants  in  the  attachment 
suit  thereupon  moved  on  affidavits  to  vacate  the  writ ;  the  motion  was 
denied  at  Special  Term,  but  the  General  Term,  on  appeal,  reversed  the 
order  of  Special  Term,  and  granted  the  motion.     Pending  the  appeal, 
most  of  the  attached  property  was  sold  as  perishable,  by  order  of  the 
court.     After  the  vacating  of  the  attachment,  the  proceeds  of  the  sale 
were  paid  over  by  the  sheriff  to  the  plaintiff  herein,  to  whom  wa£  also 
delivered  the  property  unsold.     Held,  that  the  taking  of  the  property 
was  not  a  conversion  ;  that  the  attachment  having  been  lawfully  issued, 
was  a  complete  justification,  both  to  the  officer  and  the  party,  and  it 
did  not  cease  to  be  a  protection  after  it  was  vacated  for  acts  done  under 
it ;  also,  that  defendants,  not  having  received  either  the  property  or  its 
value,  were  not  responsible  therefor  to  plaintiff.     Day  v.  Bach,  87  N. 
Y.  5'6. 

249.  An  averment  in  an  affidavit  for  an  attachment,  that  "  the  de- 
fendant is  indebted  to  the  plaintiff  in  a  sum  stated,"  and  that  the  latter 
"  is  justly  entitled  to  recover  said  sum,"  is  not  a  compliance  with  the 
requirement  of  the  Code  of  Civil  Procedure  (§  636)  that  plaintiff  must 
show  by  affidavit  that  he  "  is  entitled  to  recover  a  sum  stated  therein, 
over  and  above  all  counterclaims  known  to  him ; "  and  when  the  re- 
quirement is  only  met  by  the  averments  stated,  the  affidavit  is  insuffi- 
cient to  give  the  judge  jurisdiction  to  grant  the  warrant.     Ruppert  v. 
Bang.,  87  N.  Y.  141. 

250.  An  affidavit  upon  which  an  application  was  based  to  vacate 
an  attachment  averred  the  issuing  of  the  writ,  and  that  the  property 
of  the  defendant  was  attached   thereunder ;   that   subsequently   two 
judgments  in  favor  of  the  applicants  were  recovered  against  the  de- 
fendant, executions  issued  thereon  and  "  levied  upon  the  property  of 
said  defendant."     Also,  "  that  the  lien  of  the  executions  is  subsequent 
to  that  of  the  attachment."     Held,  that  the  affidavit  was  sufficient  to 
give  the  moving  parties  a  standing  in  court ;  that  no  other  inference 
would  be  drawn  therefrom  than  that  the  attachment  and  executions 
were  levied  upon  the  same  property,  and  that  the  lien  of  the  executions 
was  acquired  after  the  property  was  attached.     Ruppert  v.  Hang.,  87 
N.  Y.  141. 

251.  When  a  debt  has  been  legally  attached,  in  an  action  against 
the  creditor,  an  active  duty  is  imposed  upon  the  debtor,  and  he  is  liable 
when  by  inaction  he  allows  the  attached  fund  to  be  removed  from  his 
possession.     Gibson  v.  Nat.  Park  Bank,  98  N.  Y.  87. 

252.  The  certification  of  a  check  drawn  upon  a  bank  by  the  owner 
of  a  fund  on  deposit  therein  does  not,  while  the  check  is  outstanding 
in  the  hands  of  the  drawer,  exempt  the  fund  from  the  lien  of  an  at- 
tachment against  him  levied  thereon.     Gibson  v.  Nat.  Park  Bank,  98 
N.  Y.  87. 

253.  Where  in  an  action  by  a  judgment  creditor  upon  an  under- 
taking given  to  stay  proceedings  pending  an  appeal  it  appeared  that 


40  MONROE'S  DIGEST 

at  the  time  of  the  commencement  of  the  action  the  judgment  had  been 
regularly  attached  at  the  suit  of  creditors  of  the  judgment  creditor 
and  the  attachments  were  still  in  force.  Held,  that  the  action  could 
not  be  maintained ;  that  the  undertaking  was  simply  a  collateral  se- 
curity for  the  judgment  and  passed  with  it  to  the  sheriff;  that  it  was 
not  necessary  to  attach  the  undertaking  separately  as  it  was  an  inci- 
dent of  the  judgment,  not  an  independent  liability  of  the  sureties. 
Wehle  v.  Spellman,  75  N.  Y.  585. 

254.  Upon  the  thirtieth  day  after  the  granting  of  a  warrant  of 
attachment,  an   order  for  the  publication  of   the  summons    in  this 
action  was  obtained,  and  it  was  published  on  the  same  day  in  one  of 
the  papers  designated ;  it  was  delivered  upon  the  same  day  to  the  other 
paper,  but  was  not  published  until  the  next  day.     Copies  of  the  sum- 
mons and  complaint  were  mailed  to  the  defendants,  as  directed  in  the 
order,  on  the  day  it  was  granted.     Held,  (Rapallo,  Miller  and  Earl, 
JJ.,  dissenting),  that  the  publication  of  the  summons  was  not  com- 
menced  within   thirty  days   after   the   granting   of  the   attachment, 
within  the  meaning  of  section   638  of  the  Code  of  Civil  Procedure 
(New  Code) ;  and  that  the  attachment  was  properly  vacated.     Taylor 
v.  Troncoso,  76  N.  Y.  599. 

255.  It  seems,  that  a  seizure  and  levy  by  a  sheriff,  under  an  at- 
tachment against  one  person,  upon  the  entire  property  of  a  firm,  as  the 
sole  property  of  the  debtor,  is  not  justified  by  showing  that  the  debtor 
has  an  interest  in  the  property  as  a  copartner.     Atkins  v.  Saxton,  77 
N.  Y.  195. 

256.  The  power  of  the  sheriff,  for  the  purpose  of  rendering  the 
levy  upon  the  interest  of  one  partner  in  the  copartnership  property 
effectual,  to  take  possession  of  the  whole  property,  is  merely  incidental 
to  the  right  to  reach  the  debtor's  interest ;  and  is  to  be  exercised  as  far 
as  possible  in  harmony  with,  not  in  hostility  to,  the  rights  of  the  other 
partners.     Atkins  \.  Saxton,  77  N.  Y.  195. 

257.  When,  therefore,  the  sheriff  exceeds  this  limit ;  and,  instead 
of  levying  on  the  debtor's  interest,  levies  upon  and  seizes  the  property 
as  the  sole  property  of  the  debtor,  he  is  a  trespasser.     Atkins  v.  Sax- 
ton,  77  N.  Y.  195. 

258.  An  attaching  creditor  cannot  defend  an  action,  brought  by  an 
assignee  of  the  debtor,  for  the  conversion  of  a  chose  in  action  attached, 
by  showing  fraud  in  the  assignment.     Castle  v.  Lewis,  78  N.  Y.  131. 

259.  The  M.  G.  Co.,  a  manufacturing  corporation  prior  to  May, 
1872,  had  three  trustees,  one  of  whom  resigned.     One  of  the  others  was 
the  treasurer  and  general  agent  of  the  company,  having  charge  of  its 
property  and  business.     The  two  remaining  trustees  left  a  portion  of 
the  company's   goods    with   B.  &  Co.  to  sell  on  commission,  and  sub- 
sequently, in  the  name  of  the  company,  made  an  assignment  of  the 
goods  unsold  and  of  the  proceeds  of  sales  in  the  hands  of  B.  &  Co. 
to  A.,  to  secure  a  loan  made  by  him  to  the  company,  and  in  pursuance 
of  an  arrangement  made  at  the  time  of  the  loan.     In  actions  brought 
by  an  assignee  of  A.  against  creditors  of  the  company,  who  had  caused 
the  property  and  the  avails  of  sales  to  be  levied  upon  under  attach- 
ments in  their  favor,  defendants  claimed  the  transfer  to  A.  to  be  void 
for  want  of  authority,  as  by  the  statute  (§  1,  chap.  269,  Laws  of  1860, 
amending  chap.  40,  Laws  of  1848),  it  is  required  that  such  corpora- 


OF   STANDARD   DECISIONS.  41 

p 

tions  shall  have  not  less  than  three  trustees.  Held,  untenable  ;  that 
the  objection  was  not  available  in  these  actions,  and  defendants  were 
not  in  a  position  to  raise  the  same.  Castle  v.  Lewis,  78  N.  Y.  131. 

260.  Upon  motion  made  under  the  provisions  of  the  Code  of  Civil 
Procedure  (§  682)  giving  a  person   having  a  lien   upon  property  at- 
tached, acquired  subsequent  to  the  attachment,  a  right  to  apply  to  va- 
cate or  modify  it,  it  appeared  that  the  attorney  of  the  party  claiming 
the  lien  delivered  to  the  clerk  of  E.  county  a  judgment-roll,  including 
a  sufficient  statement  in  writing  to  warrant  the  entry  of  a  judgment 
by  confession   in   her  favor  against  the  attachment  debtor ;  the  clerk 
did  not,  in  fact,  enter   the  judgment,  but   delivered   a   transcript   to 
tlie   attorney,  which  was  filed   the   next  day  in  the  office  of  the  clerk 
of  N.  county,  an  execution  issued  to  the  sheriff  of  that  county.    Held, 
that  the  lien  acquired  by  the  docket  of  the  judgment  in  N.  count}'  and 
the  issuing  of  execution,  upon  the  personal  property  of  the  debtor  in 
that  county,  was  sufficient,  until  set  aside,  to  confer  upon  the  plaintiff 
therein  the  rights  of  a  lienor  under  said  provision.     Steuben  Co.  Bank 
v.  Alberger,  78  N.  Y.  252. 

261.  The    grounds    upon    which  a    warrant  of  attachment   was 
issued  were,  as  stated  in   the    affidavit,  that   the   attachment   debtor 
was  "  about  to  assign,  dispose  of,  or  secrete  his  property  with  intent  to 
defraud  his  creditors."     All  of  the  material  facts  were  stated  on  infor- 
mation and  belief  only ;  it  was  not  shown  that  the  persons  from  whom 
the  affiant  professed  to  have  obtained  his  information  were  absent,  or 
that  their  depositions  could  not  be  procured.     Held,  that  the  affidavit 
was  insufficient  to  give  the  court  jurisdiction  to  issue  the  attachment ; 
and  that  the  order  granting  it  was  reviewable  here.     Steuben  Co.  Bank 
v.  Alberger,  78  N.  Y.  252. 

262.  The  provision  of  the   National  Banking  Act  (U.  S.  R.  S., 
§  5242)  prohibiting  the  issuing  of  an  attachment,  injunction  or  execu- 
tion against  such  an  association  or  its  property  before  final  judgment, 
applies  only  to  an  association  which  has  become  insolvent  or  to  one 
about  to  become  so,  as  specified  in  the  preceding  part  of  the  section. 
81  N.  Y.  385. 

263.  Where  equity  action   to  restrain  suit  on  undertaking  given 
to  discharge  attachment,  is  not   maintainable.     Kelly  v.  Christal,  81 
N.  Y.  619. 

264.  In  an  action  against  a  national  bank  organized  in  another 
state,  an  attachment  may  be  issued  against  the  property  of  the  de- 
fendant in  this  state.     Robinson  v.  Nat.  Bank  of  Newberne,  81  N.  Y. 
385. 

265.  Builder's  lien  is,  held,  not  to  have  attached  where  a  builder 
took  real  security  for  payment  of  the  work  which  he  was  to  do,  and 
afterwards  the  work  being  all  done,  gave  it  up  and  took  a  mere  note. 
Grant  v.  Strong,  18  Wall.  U.  S.  623. 

266.  The  rule  prohibiting  the  splitting  up  a  single  demand  and 
bringing  .separate  actions  at  law,  has  no  application  to  proceedings  to 
vacate  an  attachment.     Steuben  Co.  Bank  \.  Alberger,  83  N.  Y.  274. 

267.  Where  a  surrogate  has  made  a  decree  for  the  paj'ment  of 
money  by  an  administrator,  he  may  enforce  the  performance  of  it  by 
attachment.     (2  R.  S.  221,  §  6,  sub.  4).     Dunford  v.  Weaver,  84  N. 
Y.  445, 


42  MONROE'S  DIGEST 

268.  A  mere  levy  under  an  execution  upon  property  which  has 
been  attached  is  not  such  an  "  actual  application  of  the  attached  prop- 
erty or  the  proceeds  thereof  to  the  payment  of  a  judgment  recovered 
in  the  action,"  within  the  meaning  of  section  682  of  the  Code  of  Civil 
Procedure,  as  will  bar  a  subsequent  lienor  of  the  right  to  move  to 
vacate  the  attachment.     The  section  means  an  actual  and  real  applica- 
tion as  distinguished  from  a  constructive  one.      Woodmansee  \.  Rogers^ 
82  N.  Y.  88. 

269.  It  seems  that  the  only  way  to  subject  a  judgment  to  an  at- 
tachment  is  to  serve  the  warrant  upon  the  judgment  debtor.     In  re 
Flandrow,  84  N.  Y.  1. 

270.  In  an  action  upon  an  undertaking,  given  to  discharge  an  at- 
tachment, conditioned  to  pay  any  judgment  recovered  by  the  attach- 
ment creditor,  it  appeared  that  the  attachment  debtor,  within  four 
months  after  the  issuing  of  the  attachment,  filed  his  petition  and  was- 
thereupon  adjudicated  a  bankrupt   and  made  an  assignment ;  he  then 
applied  to  the  bankruptcy  court  to  stay  proceedings  in  the  action  in 
which  the  attachment  was  issued  ;  this  was  denied,  and  judgment  was 
recovered.     Held,  that  the  proceeding  in  bankruptcy  was  no  defence, 
as  there  was  at  the  time  no  attachment  lien  or  attachment  in  force 
upon  which  the  proceeding  could  operate  ;  and  that  neither  the  letter 
nor  the  policy  of  the  bankrupt  act  was  infringed  by  holding  the  de- 
fendants liable.     McCombs  v.  Allen,  82  N.  Y.  114. 


ATTORNEY. 

271.  The  acts  of  an  attorney  in  directing  the  levy  upon  or  taking 
of  goods  upon  process  are  in  excess  of  his  general  powers  as  attorney,, 
and  in  the  absence  of  special  authority,  do  not  subject  his  client  to* 
liability.      Welsh  v.  Cochran,  18  Sickels,  N.  Y.  181. 

272.  An  attorney  who  purchases  of  a  client  a  claim  which  is  the 
subject  of  litigation,  in  case  the  propriety  of  such  purchase  is  ques- 
tioned, is  bound  to  show  the  perfect  fairness,  adequacy,  and  equity  of 
the  transaction.     Dunn  v.  Record,  63  Me.  17. 

273.  Attorney-at-law    cannot    recover    for    professional  services,, 
•without  proof  of  the  qualifications  required  by  statute;  evidence  that 
he  is  a  practicing  lawyer  in  this  State  is  not  sufficient,  but  he  may 
recover  disbursements.     An  objection,  upon  this  ground,  to  his  right 
to  recover,  is  not  too  late,  when  taken  after  the  argument,  but  before 
the  charge  of  the  judge.     Perkins  v.  McDuffee,  63  Me.  181. 

274.  Where  an  attorney-at-law  agrees  to  prosecute  a  suit  or  claim 
for  one-half  of  whatever  judgment  is  recovered,  if  no  judgment  is  re- 
covered he  will  be  entitled  to  no  compensation,  when  the  failure  to  re- 
cover is  not  the  fault  of  the  client.     Fraatz  v.  Garrison,  et  al.,  83  111.  60, 

275.  A  general  retainer  does  not  authorize  an  attorney  to  settle 
or  adjust  claims,  or  to  alter  the  terms  of  a  contract  made  by  the  client. 
Pickett,  et  al.  v.  Merchants'  Nat.  Bank,  Memphis,  et  al.,  32  Ark.  346. 

276.  An  attorney,  in  fact,  can  not  bind  his  principal  as  surety, 
unless  he  is  specifically  authorized  to  do  it.     State  ex  rel.  Merchant  v. 
Daspit,  30  La.  112. 


OF   STANDARD  DECISIONS.  4& 

277-  A  stipulation  in  a  promissory  note  for  the  payment  of  a  cer- 
tain sum  as  attorney's  fees,  if  suit  is  commenced  thereon  is  valid,  and 
may  be  enforced  in  an  action  on  the  note.  Danforth  v.  Charles,  et  al.r 
1  Benn.  Dakota  Reps.  285. 

278.  The  rule  requires  that  the  entire  professional  intercourse  be- 
tween client  and  attorney,  whatever  it  may  consist  in,  should  be  pro- 
tected by  profound  secrecy.     The  exemption  is  not  confined  to  advice 
given  or  opinions  stated,  it  extends  to  facts  communicated  by  the 
client — all  that  passes  between  client  and  attorney  in  the  course  and 
for  the  purpose  of  business.     The  privilege  is  for  the  client  and  not 
for  the  attorney.     The  interests  of  justice  and  the  protection  of  private 
rights  demand  the  strictest  confidence  and  privacy  in  this  situation. 
Lengsfield,  et  al.  v.  Richardson,  et  al.,  52  Miss.  443. 

279.  A  power  of  attorney  authorized  the  donee  to  take  possession 
of  real  estate  by  himself  or  by  a  person  in  his  confidence,  to  cultivate 
it,  to  sell  it,  to  exchange  it  or  to  alienate  it.    He  indorsed  it  to  A.  by  a 
writing,  stating  :     "  I   transfer  all  my  powers  in  favor  of  A.  in  order 
that  in  my  name  and  as  my  attorney  he  may  take  possession,"  etc. 
Held,  that  the  indorsement  only  gave  the  power  to  take  possession, 
but  no  power  to  sell.      Williams  v.  Conger,  125  U.  S.  397. 

280.  An  authority  to  an  attorney  to  collect  interest  on  a  mortgage- 
does  not  authorize  him  to  collect  the  principal.     Brewster  v.  Games, 
103  N.  Y.  556. 

281.  The   attorneys    of   the   parties    to    an    action   are   author- 
ized  to   stipulate   as  to   referee's   fees.     Such   a   stipulation  is  "  the 
consent  of  the  parties  *  *  *  in  writing,"  within  the  meaning  of  the 
Code  of  Civil  Procedure  (§  3296).     Mark  v.  City  of  Buffalo,  87  N.  Y. 
184.  t 

282.  The  title  of  an  attorney  purchasing  property  at  a  judicial 
sale  decreed  in  proceedings  in  which  he  acted  as  an  attorney,  falls  by 
the  law  of  California,  with  the  reversal  of  the  decree  directing  the 
sale,  independent  of  defects  in  the  proceedings ;  and  conveyances  after 
such  reversal  pass  no  title  as  against  a  grantee  of  the  original  owner 
of  the  property.     Gulpin  v.  Page,  18  Wall.  U.  S.  350. 

283.  A    power    of  attorney    to   sell    and    convey  real   property,, 
given  by  a  husband  and  wife,  in  general  terms,  without  any  provision 
against  a  sale  of  the  interest  of  either  separately,  or  other  circum- 
stance   restraining   the   authority   of   the   attorney  in  that   respectr 
authorize  a  conveyance  by  the  attorney,  of  this  interest  of  the  hus- 
band, by  a  deed  executed  in  his  name  alone.    Holladry  v.  Daily,  19 
Wall.  (U.  S.)  606. 

284.  Attorney-at-law  cannot  be  charged  with  negligence  when  he 
accepts  as  a  correct  exposition  of  the  law,  a  decision  of  the  Supreme 
Court  of  his  state  upon  the  question  of  the  liability  of  stockholders  of 
corporations  of  the  state,  in  advance  of  any  decision  thereon  by  his 
court.     March  v.  Whitmore,  21  Wall.  U.  S.  178. 

285.  Defendant  commenced  an  action  in  the  Marine  Court  of  New 
York  City  against  plaintiff  to- recover  a  deposit,  which  was  also  claimed 
by  another  party.     In  that  action  costs  of  appeal  from  an  order  had 
been  awarded  defendant.     Plaintiff  thereupon  commenced  this  action 
for  an  interpleader  and  procured  a  temporary  injunction  restraining 
defendant,  her  attorneys,  etc.,  from  further  prosecuting  or  carrying  on. 


44  MONROE'S  DIGEST 

the  former  action,  or  from  taking  any  steps  to  recover  said  deposit. 
German  Sav.  Bank  v.  Hotel,  80  N.  Y.  273. 

286.  Defendant's  attorney  thereafter  issued  a  precept  for  the  col- 
lection of  the  costs.     In  proceedings  to  punish  said  attorney  for  con- 
tempt, held,  that  the  injunction  did  not  prohibit  the  collection  of  the 
costs,  and  that  the  attorney  was  justified  in  issuing  the  precept.     Ibid. 

287.  Attorney -a  t-law  is  forbidden  to  purchase  an  interest  in  the 
thing  in  controversy  adverse  to  his  client.     Cunningham  v.  Jones,  37 
Kan.  477. 

288.  Tax  deed  made  to  attorney-at-law  is  void,  if  the  owner  of  the 
land  was  a  client  of  such  attorney  at  the  time.     Ibid. 


BAILEE. 

289.  The  voluntary  relinquishment  by  the  bailee  of  possession  of 
the  subject  of  the  bailment  discharges  his  lien  unless  it  is  consistent 
with    the  contract,  the  course  of  business,  or  the  intention   of  the 
parties,  that  it  should  continue.     Spaulding  v.  Adams,  32  Me.  212  ; 
also,  Danforth  v.  Pratt,  42  Me.  52 ;  and  Robinson  v.  Larrabee,  63  Me. 
116. 

290.  The  forfeiture  of  a  lien  claim,  when  once  incurred,  is  not 
waived  by  a  subsequent  arrangement  between  the  parties,  whereby  the 
bailee  resumes  the  custody  of  the  subject  of  the  bailment,  unless  such 
was  the  intention  of  the  parties.     When  the  bailee  has  parted  with  his 
possession,  the  presumption  is  that  he  has  waived  or  abandoned  his 
lien,  unless  his  conduct,  in  so  doing,  is  satisfactorily  explained.    Robin- 
son v.  Larrabee,  63  Me.  116. 

291.  The  finder  of  a  bank  note,  as  against  a  bailee,  without  re- 
ward, to  whom  he  delivers  it  to  be  kept  for  the  finder,  has  such  a  pos- 
sessory interest  in  the  note  as  entitles  him  to  recover  the  same  of  the 
bailee,  on  his  refusal  to  redeliver  to  the  finder  upon  his  request,  and  in 
the  absence  of  any  claim  of  the  rightful  owner  made  known  by  him  to 
such  bailee.     Such  bailee  is  not  bound  to  use  as  great  care  and  diligence 
in   the  keeping  of  the  note  as  he  would  be  if  he  were  a  bailee  for  com- 
pensation ;  and  if  the  note  was  stolen  from  his  possession,  he  will  not 
be  liable  for  it  unless  the  loss  was  the  result  of  gross  negligence  on  his 
part.     In  such  a  case,  to  entitle  the  plaintiff  to  recover,  he  must  show 
that  the  note  was  a  genuine  note  and  of  the  value  he  claimed.     Tancil 
v.  Seaton,  28  Grattan  (Va.)  601. 

292.  A  man  dressed  as  a  police  officer  told  the  cashier,  in  presence 
of  a  watchman  of  the  bank,  that  he  had  been  directed  by  the  lieutenant 
of  the  police  to  warn  him  that  there  were   "  suspicious  characters 
about ;  "  the  cashier  told  the  watchman  to  admit  no  one,  but  he  made 
no  inquiry  of  the  lieutenant.     After  the  bank  was  closed,  there  then 
being  another  watchman  there,  the  first  was  called  from  outside  by 
name ;  he  opened  the  door ;  a  man  dressed  as  a  policeman  and  two 
others  in  ordinary  dress  came  in ;  they  overpowered  the  watchman, 


OF  STANDARD  DECISIONS.  45 

took  securities,  etc.,  from  the  vault  including  plaintiff's,  deposited  for 
safe  keeping,  and  kept  as  the  bank's  securities.  Held,  the  bank  being 
a  voluntary  bailee,  without  reward,  the  evidence  was  not  sufficient  to 
charge  them  with  negligence.  De  Haven  v.  Kensington  Bank,  81 
Penn.  St.  95. 

293.  Actual  delivery   by  the  bailee  on  the  demand  of  the  true 
owner,  who  has  the  right  to  the  immediate  possession  of  the  goods 
bailed  is  a  sulllcient  defence  of  the  bailee  as  against  the  claim  of  the 
bailor,  and  there  is  no  difference  in  this  regard  between  a  common 
carrier  and  bailees.      The  "  Idaho,"  (30th)  IT.  S.  Repts.  93,  575. 

294.  The  statutes  of  Louisiana  prohibit  the  issue  of  bills  of  lading 
before  the  receipt  of  the  goods ;  but  they  do  not  forbid  cureing  an  ill- 
egal bill  by  supplying  goods,  the  receipt  of  which  has  been  previously 
acknowledged.     Tfie  "Idaho,"  (30th)  U.  S.  Repts.  93,  575. 

295.  A  gratuitous  bailee  of  money  to  whom  it  is  given  foj  the  pur- 
pose of  lending  it  on  good  and  sufficient  security,  and  who,  lending  it 
to  a  person  on  property  worth  much  more  than  the  sura,  and  taking 
a  properly  executed  mortgage,  delivers  the  papers  to  his  principal 
without  having  placed  them  on   record,  is  not  responsible  for  a  loss 
occurring  after  the  efflux  of  the  term  for  which  the  money  was  lentr 
by  non-recording  of  the  papers;  the  owners  of  the  security  having  had 
abundant   opportunity  to   have   them   recorded   himself.     Turton   v. 
Dufies,  6  Wall.  U.  S.  420. 

296.  A  bailee,  converting  goods  on  which  he  has  bestowed  labor 
and  acquired  a  lien,  may,  in  an  action  of  trover  brought  by  the  owner, 
set  up  his  lien  claim  in  reduction  of  damages.     Longstreet  v.  Phila.,  39 
N.  J.  Law,  63. 

297.  A  receipt,  in  the  words  following,  imports  no  legal  liability 
of  the  signer  thereof,  and  no  action  can  be  maintained  upon  it  without 
evidence  aliunde :    "  Received  from  H.  N.  Peden  one  letter  envelope, 
sealed,  and  said  to  contain  two  hundred  and  ninety  dollars."     But  if 
it  be  shown  by  other  evidence  that  the  money  was  received  as  a  bail- 
ment a  recovery  may  be  had  upon  the  receipt.     And  in  such  case  the 
receipt  constitutes  a  legal  liability,  and  is  assignable,  under  sections 
670  and  2228  of  the  Code  of  1871.     Hunt  and  Vaughn, v.  Shackleford, 
55  Miss.  94. 


BANKRUPTCY. 

298,  In  an  action  against  trustees  of  a  savings  bank  for  negligence 
in  the  discharge  of  their  duties,  two  of  the  defendants,  after  the  com- 
mencement of  the  action,  filed  petitions  for  their  discharge  in  bank- 
ruptcy and  were  discharged  before  judgment.     Held,  that  such  a  dis- 
charge was  not  a  defence  to  the  action,  as  the  claim,  being  for  unliqui- 
dated damages  occasioned  by  a  tort,  was  not  provable  in  bankruptcy 
and  therefore  not  discharged,     Hun  v.  Gary,  82  N.  Y.  65. 

299.  To  prevent  a  debt  from  being  discharged  in  bankruptcy  on 
account  of  power  of  bankrupt  in  creating  it,  the  debt  must  be  tainted 
with  fraud  in  its  inception.     If  the  contract  was  fair  and  honest  when 
made,  although  the  debtor  may  subsequently  be  guilty  of  fraudulent 


46  MONROE'S  DIGEST 

conduct  in  respect  to  it,  yet  such  conduct  does  not  destroy  the  benefit 
of  the  discharge.     Brown,  et  al.  v.  Broach,  52  Miss.  536. 

300.  When  the  principal  debtor  is  adjudged  bankrupt,  a  failure  by 
the  creditor  to  present  his  claim  for  a  dividend  does  not  release  the 
security.     Clopton  v.  Spratt,  et  al.,  52  Miss.  251. 

301.  A  discharge  obtained  under  the  insolvent  law  of  one  state  is 
not  a  bar  to  an  action  on  a  note  given  in  and  payable  in  the  same 
state ;  the  party  to  whom   the  note  was  given  having  been  and  being 
of  a  different  state,  and  not   having   proved   his  debt  against  the  de- 
fendant's estate  in  insolvency,  nor  in  any  manner  been  a  party  to  those 
proceedings.     Baldwin  v.  Hale,  1  Wallace,  223. 

302.  Under  the  Act  of  Congress  of  1874  (Chap.  390,  Act  of  1874), 
authorizing  a  discharge  of  a  bankrupt  by  composition  between  him  and 
hie  creditors,  no  debt  is  barred    by  a   composition  which  would  not 
have  been  barred  under  the  Bankrupt  Act.     Argall  v.  Jacobs,  87  N. 
Y.  110. 

303.  A  debt,  therefore,  "  created   by  the  fraud  of  the  bankrupt," 
{IT.  S.  R.  S.,  §  5117),  is  not   barred  by   a  composition  and  discharge. 
Argall  v.  Jacobs,  87  N.  Y.  110. 

304.  To  avail  himself  of  the   exception  in  the  Bankrupt  Act,  a 
creditor  is  not  bound  to  base  his  action  upon  or  to  set  up  the  fraud  in 
his  complaint.       He  may   sue    upon  the  debt  or   upon   notes   given 
therefor,  and  if  the  composition  and  discharge  is  set  up  as  a  defence, 
he  may  meet  it  by  proof  of  the  fraud  :  and  this  without  servinga  reply, 
unless  a  reply  has  been  directed   by  the  court,  as  provided  by  the 
€ode  of  Civil  Procedure   (§  516).     Argall  v.  Jacobs,  87  N.  Y.  110. 

305.  Tbe  "  fiduciary  capacity  "  in  the  provision  of  the  Bankrupt 
Act,  which  excludes  from  the    protection  of  a  discharge  debts  con- 
tracted in  that  capacity,  relates  to  cases  of  technical  trust,  not  to  such 
as  is  implied  by  the  contract  between  principal  and  agent,  and  the 
"  fraud  "  intended  by  the  same  provision  is  an  active  or  express  fraud, 
as   distinguished  from  an    implied  or   constructive   one.     Palmer  v. 
Hussey,  87  N.  Y.  303. 


BANKS. 

RIGHTS,  DUTIES  AND  LIABILITIES  OF  BANKS. 

306.  Banks  are  generally  creatures  of  statutory  law,  and  when  so, 
are  corporations.     As  such  they  owe  their  existence  to,  and  derive 
their  rights  from,  the  statute  ;  and  they  are  confined  to  the  powers  ex- 
pressly given  them  by  their  charter,  or  by  the  statute  under  which 
they  are  operating,  or  to  such  powers  as  are  necessary  to  the  proper 
exercise  of  those  expressly  given. 

307.  When  the  act  gives  power  to  a  body  of  men  to  do  a  banking 
business,  it  can  carry  on  no  other  business,  yet  certain  rights  become 
inherent  in  the  corporation  to  enable  it  to  carry  on  the  banking  busi- 
ness, and  all  acts  done  by  it  as  a  corporation,  not  specially  delegated  to 
it,  and  not  inherent  in  it  to  enable  it  to  carry  on  the  banking  business, 
are  illegal. 


OF   STANDARD   DECISIONS.  47 

308.  It  has  the  inherent  power  to  borrow  money,  but  the  borrow- 
ing must  be  done  to  enable  it  to  carry  on  its  legitimate  business.     This 
power  is  not  usually  given  by  the  statute,  it  follows  as  one  of  the  in- 
herent rights  ;  and,  if  the  borrowing  is  for  the  purpose  of  speculating, 
or  to  invest  in   property  not  necessary  for  its  business  purposes,  it  is 
illegal.     Barnes  \.  Ontario  Sank,  19  N.  Y.  152. 

309.  The  term  often  employed  by  a  banker  in  the  business   of 
banking  in  the  one  hundred  and  tenth  section  of  the  Revenue  Act  of 
July  13th,  1866,  does  not  include  moneys  borrowed  by  him  from  time 
to  time  temporarily  in  the  ordinary  course  of  his  business.     It  applies 
only  to  property  or  monej's  of  the  banker  set  apart  from  other  uses,  and 
more  permanently  invested  in  the  business.     Bailey,  Collector  v.  Clark, 
et  al.,  21  Wallace  U.  S.  284.     The  question  may  arise,  how  is  the  bank 
to  borrow  money  to  use  in  its  business?     Only  the  board  of  directors 
have  the  right,  or  are  the  proper  parties  to  authorize  the  cashier  or 
the  president,  or  both,  to  borrow  the  money.     Where  the  power   is 
delegated  to  the  two,  one  of  them  has  not  the  right  to  execute  paper 
for  the   loan,  and  it  will  be  invalid,  except  in  the  hands  of  innocent 
holders  for  value.     Ridgeway  v.  Farmers1  Bank,  12   S.  and  R.  (Pa.) 
256.     Matthews  v.  Mass.  Nat.  Bank,  U.  S.  Circuit  Court,  District  of 
Mass. ;  decided  1875. 

310.  As  a  corollary  to  the  above,  the  bank  has  a  right  to  buy  real 
estate  for  banking  purposes  alone;  this  embraces,  of  course,  land  to 
erect  a  banking  house  upon,  also  to  take  mortgages  or  other  security 
upon  real  estate  to  secure  debts  owing  to  it  that  are  past  due  ;  and,  in 
order  to  save  itself,  it  has  the  power  to  buy  the  real  estate  so  pledged 
in  order  to  secure  the  debt,  or  to  take  the  absolute  title  in  the  first 
instance  to  secure  a  precedent  debt.     And  when  it  takes  real  estate  in 
either  of  these  ways,  it  has  the  right  to  sell  and  convey  the  same.     But 
it  has  no  right  to  buy  and  deal  in  real  estate  for  purposes  of  specu- 
lation or  investment.     Metropolitan  Bank  v.  Godfrey,  23  111.  579. 

311.  Should  it  purchase  real  estate,  however,  for  such  unauthorized 
purpose,  and  the  purpose  be  made  to  appear  upon  the  face  of  the  con- 
veyance, the  deed  being  taken  to  the  bank  in  its  corporate  name,  it 
would  probably  be  held  totally  inoperative  and  to  be  absolutely  void, 
upon  the  ground  that  the  illegal  object  being  shown  on  its  face  the  in- 
strument would  be  inoperative  to  pass  the  legal  title.     There  would 
seem  to  be  no  doubt,  however,  of  the  right  of  the  bank,  in  such  case,  to 
recover  from  the  vendor  the  money  paid  him  for  the  land.     When  the 
instrument  does  not  show  on   its  face  the  unauthorized  purpose,  the 
legal  title  would  pass;  and  if  the  vendor  could  be  allowed  to  avoid  it, 
on  the  grounds  of  public  policy,  which  is  by  no  means  clear,  it  could 
only  be  upon  a  return  of  the  purchase  money.     In  case  the  conveyance 
was  not  set  aside,  either  on  the  application  of  the  vendor,  if  he  have 
such  right,  or  upon  a  proceeding  by  the  state  to  annul  the  charter  for 
this  violation,  the  real  estate  would  be  the  property  of  the  bank,  not  to 
be  used,  however,  for  the  illegal  purpose,  but  should  be  sold  by  it,  for 
the  purpose  of  appropriating  the  proceeds  of  the  sale  to  the  legitimate 
business  of  the  bank. 

312.  When  the  power  is  given  in  the  charter  of  the  bank  to  buy 
and  sell   real  estate,  it  must  be  construed  to  be  the  right  to  buy  and 
hold  for  the  purposes  above  set  forth,  and  sell  and  reinvest  for  the  pur- 


48  MONROE'S  DIGEST 

poses  above  set  forth,  and  for  no  other  ;  otherwise,  while  ostensibly  it 
is  a  bank,  it  nevertheless  becomes  a  corporation  to  speculate  in  lands. 

313.  Generally  speaking,  the  bank  has  no  right  to  do  anything 
that  is  not  strictly  within  its  charter  powers  or  inherent  therein,  yet 
when  it  makes  a  contract  which  is  largely  beyond  its  powers,  as,  for 
instance,  loaning  more  money  to  the  directors  than  the  charter  permits, 
where  the  debtor  received  the  consideration  the  bank  has  the  right  to 
enforce  the  debt,  and  the  debtor  cannot  set  up  this  want  of  power  by 
the  bank  as  a  defence  when  he  is  sued  on  a  contract.     Only  the  state 
can  complain,  and  in  a  proceeding  for  that  purpose.     Hughes  v.  Bank 
of  Somerset,  5  Litt.  (Ky.)  45. 

314.  One  of  the  principal  rights  of  a  bank  is  to  make  discounts. 
This  right  is  given  by  its  charter  of  incorporation,  or  is  inherent  where 
it  is  omitted  in  the  charter,  or  the  bank  is  a  private  one.     This  can  be 
exercised  only  through  its  board  of  directors,  who  alone  are  authorized 
to  make  discounts.     They  have  no  right  to  delegate  this  power,  for 
this  duty  and  trust  is  personal  to  the  directors.     And  in  making  dis- 
counts, the  bank  has  a  right  to  retain  the  interest  in  advance,  though 
it  may  be  more  than  the  rate  allowed  by  law  on  the  sum  actually  used, 
for  this  is  the  technical  meaning  of  discount — the  taking  of  legal  inter- 
est in  advance,  or  rather  more  technically  speaking,  the  withholding 
the  interest. 

315.  And  where  power  is  given  a  bank  to  discount  notes,  it  does 
not  follow  that  they  have  the  right  to  buy  notes  at  a  usurious  interest. 
The  right  of  buying  notes  is  an  entirety  distinct  power,  and  may  or 
may  not  be  given  by  the  charter  of  the  bank.     If  it  is  given,  its  mean- 
ing is  that  the  bank  has  only  the  right  to  buy  the  notes  for  their  fair 
market  value.     It  must  be  a  bona  fide  transaction  of  bargain  and  sale. 
If  it  is  resorted  to  to  cover  up  usury,  it  will  be  treated  as  an  usurious 
contract.     Morse  on  Bank  and  Banking,  p.  20. 

316.  A  bank  has  no  right  to  take  usury  in  any  way.     It  has  a 
right  to  charge  a  commission  for  making  collections,  or  exchange  for 
selling  drafts,  and  it  will  not  be  deemed  usury  if  the  transaction  is 
bona  fide,  and  is  really  a  commission  or  exchange.     Bank  of  United 
States  v.  Davis,  2  Hill,  N.  Y.  457. 

317.  The  bank  has  a  lien  upon  and  a  right  to  hold  all  moneys  and 
funds  in  its  hands  belonging  to  its  depositors  to  secure  or  pay  any 
balance  due  from  him ;  also  to  hold  all  paper  received  from  its  cus- 
tomer for  collection,  for  the  same  purpose.     This  right  only  exists  where 
the  customer  depositor  is  also  the  debtor  of  the  bank — the  relation 
must  be  mutual.     The  party  owing  the  bank,  and  against  whom  it 
claims  the  lien,  must  also  be  the  identical  party  who  owns  the  deposit, 
and  all  funds  or  notes  or  other  paper  coming  into  the  possession  of  the 
bank  while  their  relation  subsists  can  be  held  by  the  bank  to  enforce  this 
lien.     Lcese  &  Martin,  17  Equity  cases  (England),  224;  decided  1873. 

318.  If  A  is  a  partner  with  B,  and  a  depositor  with  the  bank,  and 
the  bank  should  have  a  claim  against  A  and  B,  it  could  not  claim  a 
lien  on  the  balance  to  A's  credit  to  pay  the  debt  due  from  A  and  B. 
This  illustrates  the  relation  that  has  to  exist  before  the  lien  attaches. 
And  again,  the  lien  does  not  attach  to  securities  placed  in  the  hands 
of  the  bank  to  secure  a  special  debt  of  the  depositor,  unless  the  deposi- 
tor should  allow  the  securities  to  remain  uncalled  for,  and  to  his  general 


OF   STANDARD   DECISIONS.  49 

credit,  after  the  debt  is  paid  for  which  they  were  originally  pledged, 
and  the  bank  has  no  right  to  detain  them  after  proper  demand  is  made 
therefor,  provided,  of  course,  the  demand  is  made  at  the  time  the  debt 
•is  paid.  Ibid. 

319.  The  bank  has  the  right  to  detain  only  the  balance  to  the  de- 
positor's credit,  or  notes  held  for  collection  to  his  general  account ;  and 
this  right  does  not  extend  to  special  deposits  of  any  kind — unless 
pledged  to  pay  the  debt ;  nor  to  any  property  of  the  depositor  of  which 
the  bank  may  become  possessed  by  mistake  or  casualty,  or  otherwise 
than  by  the  consent  of  the  depositor.     Ibid. 

320.  Where  the  depositor  owes  the  bank  several  demands,  the  bank 
may  set  off  the  balance  to  his  credit  to  any  one  of  the  demands  it  may 
select.     (State  Bank  v.  Armstrong,  4  Dev.  519).     But  the  bank  has  no 
right  to  claim  the  lien,  or  to  make  the  set  off,  until  its  depositor's  de- 
mand is  due  ;  for  instance,  if  the  bank  should  become  possessed  of  a 
demand  against  its  depositor  which  was  not  due,  it  could  have  no  right 
to  hold  any  balance  that  may  be  to  his  credit.     In  case,  however,  of  the 
insolvency  of  the  depositor,  it  is  very  probable  that  a  court  of  equity 
would  permit  the  bank  to  retain  out  of  the  balance  to  his  credit  a  suffi- 
ciency to  meet  the  demand  when  it  does  fall  due.     Ibid. 

321.  In  one  case  it  has  been  held  that  where  the  depositor  died 'and 
his  estate  was  insolvent,  that  a  court  of  equity  would  allow  the  bank 
to  withhold  funds  to  his  credit  to  pay  a  note  not  then  due.     Whether 
a  court  of  equity  would  order  a  full  or  only  pro  rata  distribution  in 
favor  of  the  bank  is  beyond  the  scope  of  this  article  to  discuss.     Ibid. 

322.  Even  when  the  note  falls  due  the  bank  is  not  compelled  to  set 
apart  at  once  from  the  depositor's  balance  sufficient  to  pay  the  same  ; 
it  can  hold  the  note  or  demand,  and  has  a  right  to  set  apart  or  hold 
funds,  to  pay  same  at  any  time.     And  all  the  time  after  its  maturity 
the  note  or  demand  will  bear  interest.     But  it  would  seem  to  be  the 
more  proper  course  for  the  bank  upon  the  maturity  of  the  demand,  to 
pay  the  same  from  the  funds  of  its  depositor  in  its  possession.     Ibid. 

323.  The  bank  has  no  lien  on  boxes  and  contents  of  the  same,  left 
with  it  by  its  depositor  for  convenience. 

324.  And  where  the  depositor  leaves  certain  securities  with  the 
bank  to  secure  the  payment  of  certain  specific  notes  or  bills,  and  they 
are  paid,  and  the  securities  are  not  withdrawn,  and  should  the  deposi- 
tor die  or  become  bankrupt,  the  bank  has  the  right  to  hold  the  securi- 
ties against  the  representative  of  the  depositor,  to  reimburse  itself  for 
other  bills  or  general  balance  due  from  the  decedent  or  bankrupt. 
Prov.  Assurance  Go.  v.  Nat.  Bank,  14  Equity  (England),  507  ;  decided 
1872. 

325.  And  where  the  depositor  is  a  member  of  a  firm  which  has  an 
account  with  the  bank,  and  keeps  also  an  individual  account  in  the 
same  bank,  it  has  no  right  to  confuse  the  two  accounts;  nor  where  lie 
keeps  an  account  both  individually  and  as  trustee,  has  the  bank  the 
right  to  retain  the  balance  due  to  him  in  one  capacity  to  pay  a  debt 
due  from  him  in  the  other  ;  and  should  the  bank  allow  the  depositor  to 
transfer  the  balance  due  him  as  trustee,  and  place  it  to  the  credit  of 
his  individual  account,  the  bank,  as  well  as  the  faithless  trustee,  would 
be  liable  to  the  beneficiary  for  the  conversion  of  the  trust  property. 

4 


50  MOKEOK'S  DIGEST 

Of  course  the  bank  must  be  cognizant  of  the  fact  of  the  misappropria- 
tion of  the  trust  fund,  before  it  will  be  bound  to  the  beneficiary.    Ibid. 

326.  A  bank,  it  has  been  held  in  a  well  considered  case,  has  the 
right  to  refuse  to  transfer  shares  of  stock  of  its  stockholder,  where  it 
has  any  lien  thereon,  until  the  lien  is  discharged,  and  that,  too,  although 
the  shares  belong  to  an  individual  partner,  and  the  debt  is  a  firm  debt 
— though  the  bank  may  have  a  balance  in  favor  of  the  firm  at  the  time 
of  its  refusal  to  make  the  transfer.     Mechanics1  Bank  \.  Earle,  4  Rawle, 
Penn.  384. 

327.  And  where  the  by-laws  of  the  bank  forbid  the  transfer  of  its 
stock,  while  the  owner  is  indebted  to  the  bank,  and  the  owner  does 
transfer  it  to  another  to  enable  the  transferee  to  obtain  a  loan  or  dis- 
count on  the  strength  of  the  stock,  and  he  so  obtains  the  loan  from 
that  bank,  the  stock  will  be  liable  for  the  debt  of  the  transferee. 
Burford  v.  Grandell,  2  Cranch,  86. 

328.  But  where  the  statute  of  the  State  gives  the  bank  a  lien  on 
its  stock  for  whatever  its  depositor  and  owner  of  the  stock  may  owe 
the  bank,  all  parties  are  bound  to  take  notice  of  the  lien ;  and  should 
the  stockholder,  while  indebted  to  the  bank,  make  an  assignment  of  his 
stock,  though  to  a  party  for  value  and  ignorant  of  the  indebtedness  to 
the  bank,  or  of  the  fact  the  law  gives  the  lien,  yet  he  will  take  the  stock 
subject  to  the  lien.      Union  Bank  v.  Laird,  2  Wheaton,  390. 

329.  Also,  where  the  depositor  dies,  having  a  balance  on  the  books 
of  the  bank  to  his  credit,  and  owes  the  bank  on  a  judgment  and  also 
on  a  contract  not  in  a  judgment,  the  bank  has  the  right  to  sell  off  his 
balance  against  the  contract  debt,  and  thus  secure  whatever  advan- 
tages the  judgment  lien  may  give  it  on  other  property  of  the  depositor. 
State  Bank  v.  Armstrong,  4  Dev.  N.  C.  519. 

330.  Where  a  bank  had  a  mortgage  on  real  estate  to  secure  general 
balance  due  from  its  depositor,  and  who  died  considerably  in  debt  to 
the  bank  with  the  debt  thus  secured,  and  who  had  given,  by  will,  power 
to  his  executors  to  charge  his  real  estate  for  the  benefit  of  his  personal 
property,  and  the  executor  had  largely  increased  this  indebtedness  to 
the  bank  by  using  funds  in  various  improvements,  and  for  the  expenses 
of  the  widow  ;    and  where   the    real   estate  mortgaged  to  the  bank 
proved  insufficient  to  pay  the  debt,  the  court  held  that  the  bank  had 
the  right  to  prove  the  balance  of  its  debt  remaining  after  the  sale  of 
the  mortgaged  premises  against  the  general  estate  of  the  decedent. 
Farhall  v.  Farhall,  12  Eng.  Law  Rep.  98;  decided  May,  1871. 

331.  Where  a  customer  has  two  accounts  at  two  different  places, 
one  at  the  mother  and  the  other  at  a  branch  bank,  and  has  a  balance 
to  his  credit  at  one  bank,  but  his  account  is  overdrawn  at  the  other, 
the  bank  has  the  right,  in  the  absence  of  a  special  agreement,  to  trans- 
fer sufficient  funds  from  the  account  where  there  is  a  balance  to  make 
good  the  other  and  overdrawn  account,  and  in  this  way  be  protected  in 
not  paying  the  check  of  the  depositor  drawn  against  his  balance  in  the 
bank  where  his  account  is  good.     Garnett  v.  McKewan,  8  Exch.(Eng.) 
10  ;  decided  in  1872. 

332.  The  question  is  not  raised  in  this  case  whether  the  bank  would 
Iiave  the  right  to  make  this  transfer  if  it  had  agreed,  on  opening  the 
two  accounts,  to  keep  them  entirety  distinct.     Ibid. 

333.  One  of  the  chief  conveniences  banks  are  to  a  business  com- 


OF   STANDARD   DECISIONS.  51 

munity,  is  to  have  a  well-known  and  designated  place  where  bills  and 
notes  can  be  made  negotiable  and  payable,  and  it  is  the  custom  of  busi- 
ness men  to  have  all  their  paper  made  payable  at  the  banks  where  they 
deposit.  When  such  a  bill  or  note  is  presented  to  his  bank,  made  or 
-accepted  by  him,  unless  he  has  forbidden  the  bank  so  to  do,  it  has  a 
right  to  pay  the  same  out  of  any  balance  the  depositor  may  have  to 
Ms  credit,  and  will  be  protected  in  so  doing ;  for  the  bank  will  have  a 
right  to  presume  that  the  depositor  so  intended  that  his  note  or  accept- 
ance should  be  paid  by  his  bank,  at  its  maturity,  without  further  in- 
structions from  him,  otherwise  he  should  not  have  made  his  paper 
negotiable  at  the  bank,  or  should  have  given  instructions  to  his  bank. 
Even  should  it  be  that  the  depositor  had  a  good  set-off  to  the  paper  so 
paid  by  the  bank,  yet  it  would  be  protected  in  paying  it,  unless  the  de- 
positor informed  the  bank  not  to  pay  it.  In  fact,  it  is  the  duty  of  the 
bank  to  pa}r  negotiable  paper  of  its  depositor  made  payable  at  his  bank, 
and  if  the  bank  should  fail  to  pay  it,  unless  so  instructed  by  the  de- 
positor, it  would  be  liable  in  damages,  should  any  follow.  Mandeville  v. 
Union  Bank,  9  Cranch,  9. 

334.  In  Wood  &   Co.  v.  Merchants'  Savings  Loan  and  Trust  Co., 
41   111.  267,  the  Court  held,  in  a  case  where  a  note  of  its  customer  was 
made  negotiable  and  payable  at  the  bank  where  the  drawer  kept  his 
account,  and  where  the  note  was  held  by  a  third  party,  that  the  bank 
had  no  right  to  pay  it  unless  specially  instructed  so  to  do.     But  if  the 
note  belongs  to  the  bank  it  has  a  right  to  pay  it  out  of  the  funds  of  its 
•customer — the  drawer  of  the  note — without  any  special  instructions, 
and  the  bank  can  appropriate  sufficient  funds  of  the  drawer  to  pay  the 
note.     The  rule  is  this  :  where  a  note  of  its  customer  is  made  payable 
at  the  bank,  and  is  held  by  it,  it  has  the  right  to  pay  it,  out  of  his 
funds,  or  even  to  charge  it  to  him,  where  he  has  not  the  funds  on  hand; 
tmt  where  the  note  is  held  by  a  stranger,  it  cannot  do  so  without  special 
instructions. 

335.  The  ordinary  relation  existing  between  a  bank  and  its  cus- 
tomer, if  not  complicated  by  any  further  transaction  than  that  of  the 
-depositing  and  withdrawing  of  moneys  by  the  customer  from  time  to 
time,  is  simply  that  of  debtor  and  creditor  at  common  law.     Morse, 
p.  25. 

336.  So,  before  the  bank  can  be  made  a  debtor  to  its  depositor,  the 
•depositor  must  give  it  a  full  consideration  ;  that  is,  must  deposit  to  his 
•credit  coin  or  notes  received  by  the  bank  as  money,  and  which  are 
entered  to  his  credit  as  so  much  money. 

337.  And  if  the  bank  has  given  a  depositor  credit  on  forged  paper, 
on  counterfeit  notes  or  coin,  there  is  no  consideration  received  by  the 
bank,  and  it  has  a  right  to  cancel  the  credit.     But  where  the  credit 
was  given  on  counterfeit  or  forged  notes  of  the  same  bank  where  the 
•deposit  was  made,  and  a  reasonable  time  has  elapsed  for  the  bank  to 
•examine  the  notes  and  it  does  not  repudiate,  it  has  no  right  to  cancel 
the  credit,  for  the  bank  is  supposed,  nay,  bound  to  know  the  genuine- 
ness of  its  own  issue.     The  same  is  true  where  credit  is  given  to  one 
depositor  on  a  forged  check  of  another  depositor  of  the  same  bank. 
Yet,  even  in  this  case,  though  the  bank  should  enter  credit  for  its  own 
counterfeit  issue,  it  has  a  right  to  cancel  it,  provided  it  is  done  at  once, 
a  very  short  time  will  be  too  late ;  the  next  day  will  be  too  late.     Bank 


52  MONROE'S  DIGEST 

of  United  States  v.  Bank  of  Georgia,  10  Wheaton,  342;  Gloucester 
Bank  v.  Salem  Bank,  1 7  Mass.  33. 

338.  A  depositor  cannot  maintain  an  action  against  a  bank,  with- 
out a  previous  demand  by  check  or  otherwise.     Doanes  v.  Phoenix- 
Bank,  6  Hill,  N.  Y.  297. 

339.  Where  the  dealings  between  a  bank  and  a  customer  were 
entered  in  a  single  account,  the  latter  being  credited  therein  with  the 
proceeds  of  notes  discounted,  with  drafts  accepted,  and  moneys  de- 
posited; and  when,  in  accordance  with  the  uniform  custom  of  dealing, 
indorsed  notes  of  the  customer  discounted  by  the  bank  were  charged 
to  his  account  as  they  matured,  without  protest,  and  were  thereafter 
surrendered  to  the  maker,  held,  that  this  was  a  payment,  and  that  a 
mortgage  securing  the  payment  of  the  notes  was  thereby  discharged. 
Crocker  v.  Whitney,  71  N.  Y.  161. 

340.  Where  parties  seek  to  negotiate  loans  from  a  bank,  it  is  the 
right,  nay,  the  duty  of  the  bank,  to  investigate  the  title  and  true 
ownership  of  stock  certificates  which  are  offered  as  collateral  security 
for  the  loan,  especially  if  the  parties  are  not  known  to  the  bank,  so  as 
to  satisfy  itself  beyond  question  that  the  party  offering  the  certificate 
of  stock  has  a  perfect  right  to  do  so. 

341.  Certificates  of  stock  are  not  negotiable  like  promissory  notes,, 
and  possession  in  hands  of  innocent  holders  even  does  not  confer  title, 
in  case  they  have  been  stolen  from  the  true  owner  or  altered  as  to  the 
amount  they  represent.     The  above  is  laid  down  as  the  true  principle 
governing  such  certificates  by  Hon.  I.  R.  Redfield  in  a  note  to  Matthews- 
v.  Massachusetts  National  Bank,  as  reported  in  March  number,  1875, 
of  Am.  Law  Register,  and  is  well  supported  by  authorities. 

342.  Mr.  Morse  says  :     "  The  old  rule  of  law  was,  that  a  corpora- 
tion could  do  no  act  save  by  a  deed  executed  under  its  corporate  seal. 
But  this  ancient  principle  has  of  late  years  been  done  away  with  by 
the  compulsion  of  the  practical  necessities  of  business.     But  the  simple 
truth  is,  that  the  elastic  expansion  of  modern  business  has  irrevocably 
snapped  the  clumsy  and  useless  ligament,  which  older  generations 
found  less  intolerable."     And  as  the  results  of  this  "  elastic  expansion  " 
most  of  the  acts  of  banks  are  now  done  by  its  agents. 

343.  These  agents,  known  as  officers  of  the  bank,  have  each  his 
name,  which  of  itself  designates  his  duties  ;  and  his  duties  are  separate 
and  distinct  from  those  of  the  other  officers.     These  several  officers  or 
agents  are  appointed  by  the  directors  ;  and  when  an  agent  is  properly 
intrusted  with  the  duties  of  his  office  the  bank  is  bound  by  all  his  acts 
and  words  when  within  the  line  of  his  duties.     When  the  question  of 
the  liabilities  of  banks  is  discussed,  this  point  will  be  more  enlarged 
upon.    And  although  certain  specific  duties  fall  to  each  officer,  yet  the 
bank,  through  its  directors,  has  the  right  to  restrict  or  enlarge  his 
special  duties;  but  if  the  directors  exercise  this  right,  any  change 
from  duties  usually  performed  by  such  officer  must  be  brought  home 
by  actual  positive  proof,  showing  that  the  party  was  aware  of  the  re- 
striction, before  he  can  be  affected  by  it.     A  party  dealing  with  the 
bank  has  the  right  to  presume  that  its  officers  have  the  powers  usually 
exercised  by  similar  officers  in  other  banks.     Stagg  v.  Elliott,  12  C.  B. 
N.  S.  373. 

344.  And  as  a  corollary  to  the  above,  as  will  be  discussed  here- 


OF   STANDARD   DECISIONS.  53 

sifter,  the  bank  is  bound  by  knowledge  of  a  fact  on  the  part  of  the 
officer  whose  function  includes  the  business  to  which  the  fact  relates, 
but  it  is  not  bound  to  take  notice  of  a  fact  which  comes  to'any  other 
officer  whose  business  or  duties  do  not  embrace  the  matters  to  which 
the  knowledge  refers  ;  for  instance,  knowledge  by  a  clerk  of  residence 
of  an  indorser,  or  of  pendency  of  a  suit  against  the  bank,  is  not  knowl- 
edge on  part  of  the  bank,  as  it  is  not  the  duty  of  the  clerk  to  attend  to 
such  matters.  So  a  bank  has  the  right  to  repudiate  the  act  of  its 
officer  when  the  act  is  one  which  the  officer  could  not  legally  do,  or 
which  could  not  be  legally  delegated  to  him  by  any  kind  of  formality 
— even  by  the  directors — even  should  a  third  party  suffer  by  the 
repudiation ;  as  every  person  is  presumed  to  know  what  functions  or 
duties  it  is  in  the  power  of  each  officer  to  perform,  as  it  is  a  part  of  the 
law  of  the  land.  For  instance,  should  a  clerk  certify  a  check  when  the 
drawer  has  no  funds,  this  act  the  bank  can  repudiate,  for  it  was  not  the 
duty  of  the  clerk  to  certify  checks  at  all,  and  he  could  not  bind  the 
bank  when  the  drawer  had  no  funds,  unless  the  bank  was  in  the  habit 
of  permitting  this  clerk  to  certify  checks.  Lloyd  v.  West  Branch 
Bank,  15  Penn.  172;  Godloe  v.  Godley,  21  Miss.  233. 

345.  As  above  stated,  the  bank  has  a  right  to  devolve  special 
duties  upon  any  one  or  more  of  its  officers,  and  the  acts  of  said  officers, 
within  the  line  of  this  special  conferred  power,  will  be  valid — for  in- 
stance, the  directors  can  give  power  to  its  president  or  cashier  to 
borrow  money  and  to  execute   the  necessary  papers  therefor,  and,  if 
necessary,  to  mortgage  real  estate  for  this  purpose.     Leggett  v.  New 
Jersey  Banking   Company,  1   Saxt.  (N.  J.)  541 ;  Burrill  v.  Nahant 
Bank,  2  Mete.  Ky.  163. 

346.  And  it  has  the  right  to  repudiate  any  loan  made  to  it,  or  its 
directors,  or   its   officers,  for  any  improper  purpose — for  a  purpose 
which  a  bank  has  no  right  to  engage  in — provided,  the  party  making 
the  loan  had  knowledge  of  the  illegal  purpose  for  which  the  loan  was 
made.     Bank  of  Kentucky  v.  Schuylkill  Bank,  1  Par.,  Sel.  C.  180. 

347.  In  a  case  of  emergency,  where  it  is  manifestly  for  the  interest 
of  the  bank,  it  can,  by  its  proper  officers,  make  a  compromise  of  a  bad 
debt,  or  even  sacrifice  some  of  the  bank's  property,  and  when  any  one 
of  its  officers  is  in  arrears,  a  compromise  can  be  made  with  him.     The 
above  fall  to  the  province  of  the  directors.     Frankfort  Bank  v.  John- 
son, 24  Maine,  490. 

348.  As  it  will  be  discussed  in  its  proper  place — the  liabilities  of 
banks  for  the  acts  of  its  officers,  when  performed  within  the  line  of 
their  duties — it  is  proper  to  say  here,  that  the  bank  has  a  right  to  as- 
sume, as  toward  its  officers,  that  they  know  what  their  respective 
duties  are,  and  that  they  are  acquainted  with  all  the  facts,  which  they 
would  have  known  had  they  attended  to  their  duties  properly  ;  it  can 
assume  that  every  director  knows  that  the  cashier  cannot  part  with 
the  paper  of  the  bank,  without  consideration  therefor ;  and  they  have 
a  right  to  hold,  where  a  director  takes  the  bank  paper,  or  other  prop- 
erty, when  the  officer  parting  with  it  had  no  right  to  use  it,  that  the 
director  is  not  an  innocent  holder.     Gillet  v.  Phillips,  3  Kern,  114. 

349.  And  a  bank  can  repudiate  the  acts  of  its  officers  which  do  not 
fall  within  the  line  of  their  duties.     Ibid. 

350.  It  can  also  repudiate  its  own  bills,  if  they  are  stolen  and  put 


54  MONROE'S  DIGEST 

into  circulation  in  a  partially  unfinished  state,  only  needing  the  signa- 
ture of  the  president  to  make  them  possess  all  the  requisites  of 
genuine  bills  ;  for,  before  they  can  be  circulated,  the  signature  will 
have  to  be  forged.  And  although,  in  such  case,  these  bills  will  ap- 
parently be  genuine,  yet  the  bank  will  have  the  right  to  refuse  to  pay 
them.  Salem  Bank  v.  Gloucester  Bank,  16  Mass.  1. 

351.  So,  when  a  director  or  other  officer  of  the  bank  becomes  guilty 
of  malfeasance  or  any  act  transcending  his  authority,  or  in  violation  of 
any  rights  of  the  bank,  the  corporation  has  a  right,  and  it  also  becomes 
its  duty,  to  enforce  a  claim  it  thus  has  against  him,  and  this  claim  be- 
comes part  of  its  assets,  and  which  it  must  push  with  vigor,  even  as 
when  seeking  to  recover  any  of  its  other  assets.     Bank  Commissioners 
v.  Bank  of  Buffalo,  6  Paige,  497. 

352.  And  when  a  director  or  officer  makes  any  fraudulent  or  false 
representation,  as  to  its  stockholders,  the  solvency  of  the  institution  or 
the  value  of  the  shares  of  stock,  the  bank  is  not  bound  by  the  declara- 
tions, even  though  they  were  made  by  the  officer  while  in  the  discharge 
of  his  duties  and  during  banking  hours  ;  for  it  is  not  part  of  his  duty 
to  make  such  statements,  and  the  bank  does  not  hold  him  out  as  pos- 
sessing authority  to  do  so.     The  party  who  relies  on  such  statements 
must  do  so  on  the  individual  responsibility  of  the  officer  or  director 
who  makes  them. 

353.  But  where  the  bank  in  its  corporate  capacity,  in  a  statement 
or  report  designed  to  be  official,  over  the  signature  of  its  regular 
officers,  should  make  representations  that  are  false,  it  is  bound  to  any 
one  who  may  rely  thereon.     Gullen  v.  Thompson,  9  Jurist,  N.  S.  85. 

354.  Should  it  appear  that  the  bank  in  this  official  way  puts  forth 
false  representations  as  to  its  condition,  it  is  doubtful  whether  the 
directors  can  be  held  individually  bound  for  any  resulting  damages ;, 
the  corporation,  it  would  seem,  is  alone  bound,  and  cannot  avoid  the 
liability.     Yet,  if  the  directors  should  make  the  representations  with 
the  intent  to  deceive  the  plaintiff  who  claims  to  have  suffered  damage,, 
and  the  proof  is  clear,  they  can  be  held  individually.    Mabey  v.  Adams, 
3  Bosw.  346. 

355.  The  directors  are  elected  from  the  stockholders,  and  usually 
the  largest  stockholders  are  chosen,  persons  most  interested  in  the 
prosperity  of  the  institution.     The  duties  of  the  office  usually  do  not 
require  much  of  their  time,  and  it  is  rendered  gratuitously,  and  the 
bank  is  under  no  obligation  to  compensate  them  for  services,  unless  a 
special  contract  to  that  effect  was  made.     Loan  Association  v.  Stone- 
metz,  29  Perm.  534. 

356.  But  where  a  director  renders  services  for  the  bank  wholly 
outside  his  ordinary  duties  as  director,  at  the  request  of  the  board  of 
directors,  and  which  he  is  not  bound  to  do  as  director,  he  can  recover 
for  such  services.     Chandler  v.  Monmouth  Bank,  I  Green,  255. 

357.  A  bank  can  repudiate  a  transfer  of  its  funds,  by  its  corre- 
spondent, when  made  to  pay  the  private  debt  of  its  officers,  even  though 
it  be  the  president.     Of  course  the  correspondent  must  have  been  privy 
to  the  illegal  use  of  the  money.     Reed  v.  Bank  of  Newburgh,  6  Paiger 
337. 

358.  But  if  the  bank  deposited  its  money  so  carelessly  that  the 
bank  of  deposit  is  misled  into  thinking  the  fund  belongs  to  the  presi- 


OF   STANDARD   DECISIONS.  55 

dent,  then  it  will  be  protected  in  the  payment,  and  the  other  bank  must 
suffer  the  loss,  which  was  brought  about  by  its  own  carelessness. 
Fulton  Bank  v.  New  York  and  Sharon  Canal  Co.,  4  Paige,  127. 

359.  As  before  stated,  each   bank  has  its  officers  to  transact  its- 
business,  and  the  official   name  of  each  officer  usually  designates  the 
peculiar  duties  he  has  to  perform.     The  president  can  represent  the 
bank  and  bind  it  in  many  transactions,  but  they  must  be  within  the 
line  of  his  ordinary  duties  and  powers,  or  the  bank  will  have  a  perfect 
right  to  repudiate  the  same.     The  Supreme  Court  of  Massachusetts,  as 
reported  in  case  Foster  v.  Essex  Bank, 11  Mass.  479,  held,  1.     That  a 
bank  president  has  no  right  to  agree  to  receive  deposits  of  money  on 
interest,  it  not  being  the  part  of  the  ordinary  business  of  that  bank  to 
do  so. 

360.  Nor,  2.     Can  the  president  charge  the  bank  with  a  greater 
liabilit}'  for  the  safety  of  a  special  deposit  than  it  was  wont,  ordinarily, 
to  undertake  ? 

361.  Same  principal  will  apply  to  undertakings  on  the  part  of  the 
cashier  or  other  officer.     To  further  illustrate :     Should  the  clerk  or 
bookkeeper  receive  a  deposit  or  subscription  for  stock,  the  bank  is  not 
bound  for,  and  has  the  right  to  repudiate  the  same,  as  the  clerk  and 
bookkeeper  are  not  the  proper  officers  to  receive  deposits  or  subscrip- 
tion of  stock.     But  if  the  bank  has  permitted  these  officers  to  do  these 
acts,  although  not  strictly  in  their  line  of  duties,  yet  the  bank  cannot 
avoid  the  liability.     Manhattan  Co.  v.  Lydig,  4  Johns.  377. 

362.  And  should  the  clerk  or  bookkeeper  receive  deposits  of  money , 
and  had  not  been  in  the  habit  of  doing  so,  or  the  bank  did  not  know  of 
or  ratify  the  act,  and  the  money  is  embezzled  by  the  clerk  or  book- 
keeper before  it  was  actually  placed  to  the  credit  of  the  depository 
the  loss  will  be  that  of  the  depositor ;  for,  by  giving  his  money  to  this 
officer,  he  makes  him  his  own  agent.     1  Wallace,  U.  S.  234. 

363.  The  bank  can  ratify  any  act  done  with  its  officers  or  agents 
and  get  the  benefit  therefrom.     Especially  is  this  so  if  the  transaction 
is  intended  to  be  with  the  bank,  although  done  in  the  name  of  the 
officer  who  attends  to  the  transaction.     For  instance,  should  the  cash- 
ier take  paper  endorsed  or  made  to  him  as  cashier,  the  bank  has  the 
right  to  hold  the  parties  on  the  same,  and  can  sue  in  its  own  name ; 
and  this  is  so  whether  the  word  cashier  appears  on  the  paper  or  not. 
Baldwin  v.  Bank  of  Newbury,  1  U.  S.  Wall,  234. 

364.  The  word  cashier,  or  president,  or  whatever  name  the  con- 
tract may  be  made  in,  are  only  words  descriptive  of  his  office,  and,  in 
fact,  the  contract  is  one  with  the  bank,  although  technically  with  the 
individual  who  is  cashier,  and  the  bank  has  the  right  to  so  consider  it. 
Of  course,  if,  as  a  matter  of  fact,  the  contract  was  -not  made  on  the 
part  of  the  bank,  the  word  cashier,  etc.,  adds  nothing  to  it. 

365.  It  is  supposed  that  when  a  bank  opens  for  business  it  will 
take  on  deposit  the  funds  of  any  person  who  may  apply  to  be  one  of 
its  customers.     But  this  is  not  so. 

366.  A  bank  is  not  like  a  common  carrier,  bound  to  accommodate 
any  one  who  may  apply.     It  has  the  right  to  select  its  customers  from 
those  who  may  apply,  and  'this  selection  can  be  done  without  giving 
any  reason  therefor,  and  the  bank  can  not  be  held  bound  for  its  refusal. 
It  can  also  cause  the  customer,  once  permitted  to  make  his  deposits,  to 


56  MONROE'S  DIGEST 

remove  his  balance,  and  can  refuse,  further,  to  allow  him  the  privilege 
of  being  a  customer ;  and,  ordinarily,  it  is  the  duty  of  the  cashier  to 
make  this  selection,  unless  the  directors  assume  this  duty.  Thatcher  v. 
Bank  of  State  of  New  York,  5  Sandf.  121. 

367.  And  where  a  stranger  leaves  money  with  the  bookkeeper  or 
the  clerk,  to  be  for  him  deposited  and  applied  to  the  payment  of  his 
note,  he  does  not  thereby  become  a  depositor,  and  the  bank  assumes  no 
liability  for  the  application  of  the  fund  thus  thrust  upon  it  without  its 
consent,  expressed  through  the  proper  officer,  who  is  usualljr  the  cash- 
ier or  receiving  teller. 

368.  Should  the  officer  of  the  bank  undertake  to  do  official  acts 
away  from  the  bank — as,  for  instance,  should  the  receiving  teller,  out- 
side the  bank,  receive  money  from  a  depositor,  the  bank  has  a  right  to 
repudiate  it ;  or,  should  the  cashier  certify  a  check  good,  although  he 
is  just  from  the  bank,  and  knows  that  when  he  left  the  drawer  of  the 
check  had  funds  to  his  credit,  yet  the  bank  can  repudiate  this  act,  for 
the  funds  may  be  drawn  out  before  the  cashier  returns. 

369.  Yet,  if  the  cashier  should   thus  certify  a  check  outside  the 
bank,  and  he  had  been  in  the  habit  of  so  doing,  and  not  restrained  by 
the  bank,  should  the  check  come  into  the  hands  of  an  innocent  holder, 
it  is  a  question  as  to  whether  the  bank  is  not  bound.     Bullard  v.  Ran- 
dall, 1  Gray,  605. 

370.  Still  the  bank  can  ratify  all  irregular  acts  of  its  officers  and 
agents,  and  look  to  them  for  indemnity  against  loss.     See  Morse,  pp. 
174,  175. 

371.  Should  the  cashier  pay  a  check  purporting  to  be  drawn  by 
one  of  its  customers,  but  which  is  in  fact  forged,  the  bank  is  bound,  as 
it  is  the  duty  of  the  cashier  to  pay  checks,  and  he  is  bound  to  know 
the  signature  of  the  customers  of  the  bank  ;  but  the  bank  is  not  bound 
if  the   forged  check  is  shown  the  cashier,  and  he  should  reply  it  was 
genuine  when  the  question  is  asked  him,  as  the  bank  agrees  only  to  pay 
checks  of  its  depositors,  when  it  has  funds  of  its  depositor,  but  does 
not  agree  to  set  itself  up  as  an  expert  to  decide  on  the  genuineness  of 
the  signatures  of  its  depositors,  and  if  the  cashier  does  more,  he  does 
so  without  authority. 

372.  But  should  the  party  presenting  the  check  tell  the  cashier  he 
is  about  to  take  it,  and  he  should  tell  him  it  is  a  genuine  signature, 
;and,  relying  on  the  judgment  of  the  cashier,  the  presenter  should  take 
the  check,  the  bank  would  then  be  bound.     Espy  v.  Bank  of  Cincin- 
nati, 1 8  Wall.  604. 

373.  Overdraft  by  an  agent,  of  his  principal's  account,  with  the 
knowledge  of  the  cashier  of  the  bank,  the  credit  being  extended  to  the 
principal,  amounts  to  a  simple  loan  of  money,  and  does  not  involve 
moral  turpitude,  whether  the  cashier  had  authority  to  extend  such  ac- 
commodation or  not.     The  authority  of  the  cashier  cannot  be  ques- 
tioned in  an  action  by  the  bank  to  recover  money.     The  case  of  Union 
Bank  v.  Mott,  39   Barb.  180  ;  affirmed  in  Union  Gold  Mining  Co.  v. 
Eocky  Mt.  Nat.  Bank,  2  Colorado,  248. 

374.  The  president  of  a  bank  is  not  authorized  to  certify  his  own 
check.     Claflin  v.  Farmers'  and  Mechanics1  Bank,  25  N.  Y.  86. 

375.  When  a  bank  requires  and  takes  from  its  officers  bonds  for 
the  faithful  performance  of  their  official  duties,  these  bonds,  generally, 


OF   STANDARD   DECISIONS.  57 

are  so  drawn  as  to  cover  ignorance  of  duty,  gross  negligence  of  duty 
and  also  dishonesty,  and  for  a  failure  to  comply  with  the  requirements 
of  the  bond,  the  bank  has  a  right  of  action  against  the  sureties  of  the 
officer.  American  Bank  v.  Adams,  12  Pickering,  303. 

316.  Where  the  directors  of  a  bank  suspect  any  officer  of  fraud 
upon  the  bank,  or  any  unfaithfulness  to  his  trust,  it  is  their  duty  to 
immediately  dismiss  or  suspend  him.  Unless  they  act  with  prompti- 
tude, the  sureties  of  the  officer  will  be  discharged  from  liability  for  any 
wrong  committed  after  the  suspicion  is  aroused  and  brought  home  to 
the  knowledge  of  the  directors.  But  even  should  the  directors  fail  to 
suspend  or  dismiss  the  suspected  officer,  it  will  not  relieve  the  sureties 
from  liability  for  any  wrong  committed  by  him  before  the  suspicion  is 
aroused.  State  Bank  v.  Chetwood,  3  Halst.  1. 

377.  Though  the  directors  of  the  bank  are  bound  to  good  faith 
with  the  party  who  proposes  to  become  surety  on  the  bond  of  its 
officer,  and  are  required  to  disclose   to  him  any  facts  known  to  them 
which  will  materially  enhance  his  risk  by  becoming  such  surety — such 
as,  that  the  officer  is  guilty  of  negligence  or  has  been  guilty  of  frauds 
— yet  the  surety  will  be  liable  to   the  bank  for  any  fraud  committed 
during  his  term  of  office,  where  the  officer  was  guilty  of  fraud  on  the 
bank  before  the  execution  of  the  bond,  but  where  the  knowledge  of  the 
fraud  was  not,  as  a  matter  of  fact,  known  to  the  directors ;  and  that  is 
true,  even  though  the  directors  were  guilty  of  gross  negligence  in  not 
discovering  the  fraud.      Tapley  v.  Martin,  116  Mass.   275;    decided 
1874. 

378.  The  sureties  of  the  officer  are,  of  course,  not  bound  for  any 
fraud  committed  before  they  become  such  sureties,  unless  afterwards, 
and  while  they  were  such  sureties,  the  officer  should  do  an  act  which 
tended  to  make  the  fraud  more  complete.     The  occurrence  of  any  sub- 
stantial part  within  that  period  is  enough  to  make  the  liability  attach. 
Morse,  p.  219. 

379.  A  bank  has  the  right  to  refuse  payment  of  a  check  when  the 
same  is  ambiguously  drawn  or  worded,  or  when  there  is  anything  sus- 
picious about  the  check,  until  it  can  satisfy  itself  beyond  all  doubt ;  on 
the  ground  that  the  depositor  must  aid  the  bank  in  the  difficult  task  of 
deciding  a  question  so  vitally  important,  lest  a  fraud  be  perpetrated  on 
the  bank  ;  and  when  the  check  is  so  loosely  drawn  as  to  show  a  doubt 
on  its  face  as  to  its  regularity  or  genuineness  the  bank  pays  it  at  its 
peril,  and  it  has  the  right  to  take  time  to  look  into  it. 

380.  The  sum  to  be  paid  must  be  plainlj'  and  explicitly  set  forth, 
and  it  must  be  drawn  to  be  paid  in  dollars ;  it  must  be  addressed  to  the 
bank  where  the  depositor  has  funds  ;  it  must  be  dated,  for  a  check  is 
not  payable  until  it  is  dated ;  it  must  be  so  written  as  to  show  that  the 
bank   is   ordered   or   requested   to   pay  it ;  it   must   be  signed  by  the 
drawer,  and  drawn  payable  to  some  one  or  to  bearer.     And  the  bank 
has  the  right  to  require  that  the  check  shall  have,  substantial!}',  all 
the  above  requisites  before  it  pays  the  same.      See  Morse,  pp.  234- 
238. 

381.  The  question  as  tp  whether  a  check,  payable  by  its  terms  sev- 
eral days  after  it  is  drawn,  is  entitled  to  grace  or  not,  is  involved  in  a 
distressing  state   of  doubt.     Directly   contrary  decisions   have   been 
made  on  this  question  by  courts  of  last  resort.     The  doubt  and  uncer- 


58  MONROE'S  DIGEST 

tainty  have  arisen  from  uncertainty  in  the  answer  to  a  question  lying 
back  of  the  former  one,  to  wit :  Is  such  a  check  in  every  essential 
point  a  bill  of  exchange  ;  if  it  is  a  bill,  then  of  course  it  is  entitled  to 
grace.  The  answer  to  this  question  again  must  be  sought  still  further 
back.  On  whom  and  by  whom  is  the  paper  drawn  ? 

382.  The  definition  of  a  check  is  as  follows :     It  is  an  order  upon 
a  bailee  of  funds,  either  a  bank  or  banker,  to  transfer  a  named  amount 
of  money  held  on  deposit  for  the  drawer,  to  the  drawee,  or  to  his  as- 
signee. 

383.  Now,  then,  if  the  paper  in  question  indicates  that  it  is  an  or- 
der drawn  by  a  customer  on  his  bank,  to  pay  over  a  portion  of  hi& 
deposit  to  the  payee,  then  the  paper  has  the  essential  elements  of  a 
check,  and  is  not  entitled  to  grace. 

384.  If,  however,  it  indicates  by  its  terms,  or  if  there  is  any  other 
paper  or  direction  accompanying  this  paper,  indicating  that  it  is  drawn 
on   a  merchant,  or  that,  by  special  agreement  of  the  parties  to  the 
contract,  grace  is  contracted  for,  then  the  paper  becomes  a  bill  of  ex- 
change and  entitled  to  grace.     These  principles  are  laid  down  in  the 
recent  case  of  Champion  v.   Gordon,  decided  by  the  Supreme  Court  of 
Pennsylvania,  and  in  the  able  note  of  Hon.  I.  F.  Redfield  to  this  case, 
in  January  number,  1813,  of  American  Law  Register.     The  case  and 
the  note  treat  the  question  on  principle  and  reach  the  above  conclu- 
sion ;  and  while  perhaps  courts  of  other  States  may  not  follow  this 
ruling,  they  are  probably  the  safest  guide  to  the  practical  banker  that 
can  be  given  to-day.     And  the  legitimate  conclusion  is,  that  where  the 
paper  is  drawn  on  a  bank  or  banker  and  payable  some  days  after  it  is 
drawn,  with  nothing  more,  it  should  be  presented  and  protested  for 
non-payment  on  the  day  it  is  made  payable. 

385.  Of  course,  a  check  payable,  as  checks  are  ordinarily  drawn, 
not  designating  any  day  for  payment,  is,  like  bills  and  notes  payable 
on  demand,  not  entitled  to  days  of  grace. 

386.  Whenever  a  bank  receives  one  as  a  customer  and  takes  his 
funds  on  deposit,  it  thereby  agrees  and  is  bound  to  pay  all  orders  or 
checks  drawn  on  it  by  the  depositor,  provided  the  depositor  has  suf- 
ficient funds  to  his  credit  not  otherwise  appropriated.     If  he  has  a 
balance  to  his  credit,  but  not  sufficient  to  pay  the  check  in  full,  the 
bank  has  a  right  to  refuse  to  pay  the  check. 

387.  Whether  the  bank  should  pay  the  check  in  part,  or  so  far 
as  this  balance  of  the  drawer  may  go,  is  very  questionable.     The  prin- 
ciple is,  that  the  depositor  orders  the  bank  to  pay  a  sum  certain,  and 
not  part  of  the  sum,  to  do  a  certain  act  and  not  part  of  it;  and,  it 
seems,  the  proper  course  for  the  bank  to  pursue,  is  to  pay  the  whole  or 
no  part  of  it.     This  is  a  right  it  can  exercise,  and  should  do  it,  and  it 
certainly  will  be  protected. 

388.  While  it  is  the  duty  of  the  bank  to  pay  the  first  check  that  is 
presented,  yet  the  first  may  be  for  more  than  the  balance  to  the  credit  of 
the  drawer,  and  the  bank  can  refuse  to  pay  it,  and  when  the  second  is 
presented,  if  for  less,  then  it  has  a  perfect  right  to  pay  the  second,  al- 
though it  may  have  knowledge  that  another  check  has  been  presented 
for  payment  prior  to  the  one  it  is  paying,  but  for  an  amount  greater 
than  the  balance  to  the  credit  of  the  drawer. 

389.  It  is  the  duty  of  the  bank  to  pay  all  checks  properly  and  in- 


OF   STANDARD   DECISIONS.  59 

telligently  drawn  on  it  by  its  depositor  where  he  has  sufficient  funda 
to  meet  it,  and  if  the  bank  refuses  to  pay  them  it  is  liable  for  all  dam- 
ages that  may  accrue  to  the  drawer. 

390.  But  the  bank   has  the  right  to  refuse  the  payment  of  all 
checks  which  are   presented  in  a  suspicious  manner  or  a  questionable 
shape.     At  least  it  has  a  right  to  refuse  the  payment  of  the  same  until 
it  can  satisfy  itself  that  it  would  be  safe  and  proper  to  pay  it ;  for  in- 
stance, the  check  may  be  torn  and  pasted  together  again,  the  bank 
should  refuse  to  pay  it  until  it  could  investigate  the  matter,  but  it 
should  reserve  funds  of  the  drawer  sufficient  to  pay  it,  should  the  fact 
turn  out  to  be  that  it  was  accidentally  torn,  or  torn  with  no  intention  to 
destroy  it.     Scholey  v.  Ramsbottom,  2  Camp,  485. 

391.  Should  a  check  be  presented  to  a  bank  drawn  for  an  amount 
greater  than  the  balance  to  the  credit  of  the  drawer,  as  above  said,  the 
bank   has  the  right  to  refuse  payment,  and  is  not  bound  to  pay  the 
balance  and  have  it  credited  on  the  check,  for  the  holder  has  a  right  to 
the   check  until  it  is  paid,  and  in  that  case  the  bank  would  have  no 
voucher.     This  is  an  additional  reason  to  the  one  above  why  the  bank 
has  the  right  to  refuse  part  payment  of  the  check  :  it  was  not  ordered 
to  pay  in  part,  and  must  have  the  check  in  its  possession,  if  it  pays  it. 

392.  But  should  the  holder  of  the  check  offer  to  take  the  balance 
to  the  credit  of  the  drawer  and  surrender  the  check,  it  is  then  the  duty 
of  the  bank,  as  will  be  fully  discussed  under  the  head  of  duties,  to  pay 
the  balance  to  the  holder  and  take  up  the  check. 

393.  The  question  ma}r  often  arise  as  to  the  length  of  time  a  bank 
may  hold  a  check  before  it  will  be  considered  as  having  accepted  it. 
As  above  said,  where  there  are  any  suspicious  circumstances  surround- 
ing a  check,  as  when  it  has  been  torn  and  then  pasted  together,  or 
•where   it  is  presented  an  unreasonably  long  time  after  its  date,  the 
bank  has  the  right  to  take  time  to  investigate  the  suspicious  circum- 
stances and  fully  satisfy  itself  before  it  can  be  held  liable  for  non-pay- 
ment ;  so,  where  a  bank  receives  a  check,  drawn  on  it  and  sent  for 
payment   by  one  of  its  correspondents  from  a  distance,  it  may  retain 
the  same  a  reasonable  time  to  examine  the  customer's  account  to  satisfy 
itself  whether  to  pay  it  or  not  without  being  held  as  acceptor. 

394.  In  case  Oberman  v.   Hoboken  City  Bank,  31  N.  Jersey,  563r 
the  bank  retained  the  check  twenty-four  hours,  and  it  was  then  re- 
turned marked  "  not  good,"  and  the  court  held  that  the  bank  had  the 
right  to  retain  it  that  time  without  making  itself  liable. 

395.  Whenever  a  dishonored  check  is  taken  by  a  party,  he  then 
takes  it  subject  to  all  the  equities  in  favor  of  the  drawer.     A  check  is 
dishonored  when  payment  is  refused  for  any  cause ;  but  when  there  is 
no  mark  to  indicate  that  demand  has  been  made  and  payment  refused, 
it  will  not  be  deemed  dishonored  until  a  reasonable  time  has  elapsed 
after  it  is  payable.     In  Ames  v.  Meriam,  98  Mass.  294,  a  check  taken 
ten  days  after  it  was  drawn  was  held  not  open  to  equities  in  favor  of 
the  drawer.     Probably  a  much   longer  time  may  elapse,  according  to 
the  circumstances  of  the  case,  and  the  bank  be  safe  in  paying  a  check, 
or  a  party  in  taking  it,  and  still  it  would  not  be  open  to  equities  ;  but, 
as  before  said,  it  is  safe  for  the  bank  to  be  cautious. 

396.  So,  if  a  stale  check,  say  a  year  old,  should  be  presented  for 
payment,  this  of  itself  would  be  sufficient  to  put  the  bank  on  enquiry, 


60  MONROE'S  DIGEST 

and  would  give  it  the  right  to  delay  payment  until  proper  enquiry 
could  be  made.  Cowing  v.  Altman,  1  N.  Y.  Supreme  Court  Reports, 
494  ;  decided  October,  1873  ;  Oerome  v.  Com.  Exchange  Bank,  5  same ; 
decided  January,  1875. 

397.  In  this  last  case  the  facts  were  these  :     A  bank  certified  a 
•check   for   the   drawee,  and  he  retained  it  for  seven  years ;  he  then 
transferred  it.     In  the  meantime  the  drawer  had  withdrawn  all  his 
funds,  the  bank  not  having  charged  him  with  the  certified  check.    And, 
while  in  this  case  the  court  rest  their  opinion  on  another  point,  still  a 
sufficient  warning  is  given  to  banks  not  to  pay  stale  checks,  although 
certified,  without  careful  enquiry.     It  is  their  right  to  refuse  payment 
until  perfectly  satisfied  that  there  is  nothing  suspicious  in  the  transac- 
tion, and  they  should  always  exercise  this  right. 

398.  And  where  a  check  is  presented  for  payment,  not  properly 
signed,  as  where  it   requires   the   signature   of  another   besides   the 
drawer,  the  bank  has  a  right  to  refuse  its  payment ;  yet,  should  the 
bank  pay  it,  and  the  funds  go  to  the  proper  party,  or  reach  the  proper 
channel,  the  bank  will  be  protected  in  the  payment.     It  is,  however,  a 
dangerous  plan  for  banks  to  pay  any  check  not  properly  signed,  as  it 
is  often  very  difficult  for  it  to  trace  the  funds,  should  it  be  called  upon 
to  defend.     Coate  v.  Bank  of  U.  S.,  3  Cranch,  50. 

399.  So,  where  persons,  without  being  legally  appointed  directors 
of  a   corporation,  yet  assumed  to   act  as  such,  and  apparently  acted 
under  the  provisions  of  the  charter,  and  drew  checks  as  such  acting 
directors  on  a  bank,  the  bank  was  protected  in  paying  them,  although 
the  money  was  wasted,  and  although  these  persons  were  never  elected 
by  the  stockholders,  who  were,  in  fact,  ignorant  of  the  whole  transac- 
tion, and  whose  money  was  virtually  stolen  by  the  drawers  of  these 
checks.     Holy  ford  Mining   Co.  v.   Nat.  Bank,  5  Irish  Rep.  516 ;  de- 
cided in  1871. 

400.  The  depositor  has  the  right  to  revoke  the  payment  of  any 
checks  drawn  by  him  upon  giving  the  proper  notice  to  the  bank,  and 
it  has  the  right  and  will  be  protected  in  refusing  the  payment  of  the 
same.     But  this  power  of  revocation  must  be  exercised  on  the  part  of  the 
drawer  before  the  check  is  presented  for  payment,  and  before  the  bank 
has  in  some  way  obligated  itself  to  pay  it.     Even  after  the  check  is  pre- 
sented, but  if  not  paid  for  some  reason,  the  drawer  can  revoke  it,  un- 
less the  bank  has  in  some  way  bound  itself. 

401.  And  even  should  the  bank  certify  a  check,  it  has  the  i*ight  to 
recall  it,  if  it  was  done  through  mistake,  as  where  the  drawer  had  no 
funds,  or  it  was  certified  through  fraud ;  provided,  it  repudiates  its  act 
very  promptly,  while  the  check  remains  in  the  hands  of  the  party  pre- 
senting it,  and  the  holder  has  in  no  "way  been  prejudiced  by  the  repu- 
diation, as  that  he  has  parted  with  property  or  security  on  the  strength 
of  the  bank  certifying  the  check  as  good.     Irving  Bank  v.  Wetherald, 
36  N.  Y.  335. 

402.  Acting  under  the  above  principle  that  the  drawer  can  revoke 
his  checks  before  presented,  the  bank  has  the  right  to  refuse  and  should 
refuse  payment  of  a  check  drawn  payable  some  days  after  it  is  dated, 
if  it  should  be  presented  on  any  day  prior  to  such  a  day — or  else,  if  it 
pays  it,  it  is  done  at  its  own  peril,  for  payment  might  be  counter- 
manded, and  the  course  of  the  bank  is  clea-r.     It  has  the  right,  and 


OF  STANDARD   DECISIONS.  61 

should  unquestionably  exercise  it,  not  to  pay  any  check  before  the  day 
on  which  it  is  made  payable,  nor  to  certify  the  same,  nor  in  any  way 
bind  itself  to  its  recognition.  It  may  here  be  remarked,  that  although, 
the  drawer  has  the  right  to  revoke  his  check  before  presentment  and 
payment,  yet  should  it  come  into  the  hands  of  a  third  party,  an  inno- 
cent holder  for  value,  it  is  very  questionable  whether  he  would  have 
the  right  to  revoke  payment. 

403.  The  bank  has  no  right  to  and  makes  itself  responsible  when 
it  pays  or  certifies  a  check  before  the  day  on  which  it  is  made  payable. 
Clarke  v.  National  Bank  of  Albion,  52  Barb.  592. 

404.  The  general  doctrine  is,  that  where  a  bank  receives  paper  for 
collection  and  has  it  protested  for  non-payment  or  non-acceptance,  its- 
absolute  duty  extends  only  to  the  notifying  of  the  person  from  whom 
the  collection  is  received  of  the  dishonor. 

405.  Usage  or  special  contract  may,  however,  change  this  rule. 
It  is  of  course  best  to  notify  all  the  parties,  as  the  above  rule  is  not 
operative  in  all  the  States ;  but  the  preponderance  of  the  authority  is 
in  favor  of  this  rule.     But  if  the  bank  attempts  to  notify  all  parties  it 
is  its  duty  to  do  so  correctly,  as  an  attempt  to  notify  all  the  parties  to 
the  dishonored  paper  will  be  regarded  as  prima  facie  evidence  that  the 
bank  contracted,  or  that  it  is  the  usage  of  that  place  for  banks  to  no- 
tify all  parties.     State  Bank  v.  Bank  of  Capitol,  41  Barb.  343. 

406.  The  bank  has  the  right  to  assume  that  reasonable  and  well- 
established  usages,  either  of  banks  in  general  or  of  that  particular 
bank,  enter,  as  elements,  into  any  particular  contract  made  with  its 
customer,  or  with  the  party   who  makes  his  paper  payable  at  that 
bank ;  and  those  features  of  the  contract  which  were  not  definitely 
settled  by  the  parties  will  be  governed  by  the  usage ;  and  the  bank  has 
the  right  to  assume  further,  that  its  customer  is  familiar  with  and  is 
willing  to  be  governed  by  that  usage.     Bank  of  Columbia  v.  Mary- 
land,  6  Har.  &  J.  180. 

407.  But  when  the  bank  becomes  owner  of  paper  which  was  not 
made  payable  there,  then  the  presumption  that  the  drawer  was  familiar 
with  and  implicitly  agreed  to  be  governed  by  the  usage  of  that  partic- 
ular bank  does  not  exist,  and  the  usage  will  not  enter  into  the  contract. 
Ibid.  180. 

408.  Where  one  bank  transmits  paper  for  collection  to  its  corre- 
spondent, the  question  whether  the  collecting  bank  has  the  right  to 
place  the  proceeds  of  the  collection  to  the  credit  of  the  transmitting 
bank  as  against  the  true  owner  of  the  paper,  whose  name  is  not  dis- 
closed, becomes  very  important. 

409.  And  it  is  well  settled  by  well  considered  cases  that  the  col- 
lecting bank  cannot  place  proceeds  of  paper  sent  it  for  collection  to 
the  credit  of  the  transmitting  bank,  so  that  the  true  owner  will  lose  it 
in  case  of  the  failure  of  the  transmitting  bank.     Bank  of  the  Metropo- 
lis v.  New  England  Bank,  7  How.  234. 

410.  Although  the  two  banks  may  have  for  years  been  crediting 
each  other  with  proceeds  of  collections  thus  mutually  sent,  yet  this 
usage  will  not  avail  the  bank  as  against  the  claim  of  the  true  owner 
of  the  paper. 

411.  But  where  the  collecting  bank  shows  that  it  advanced  money 
on  the  collection  to  the  transmitting  bank,  not  knowing  the  paper  be- 


62  MONROE'S  DIGEST 

longed  to  its  customer,  it  seems,  then,  in  case  of  failure  of  transmitting 
bank,  the  loss  would  fall  on  the  customer.  Dod  v.  Fourth  National 
Bank  of  New  York,  59  Barb.  265  ;  Miller  v.  Farmers'  and  Mech.  Bank, 
30  Md. 

412.  The  true  rule  is  this:     Where  the  bank  to  which  the  paper 
is  sent  is  ignorant  of  the  true  owner,  and  supposes  it  belongs  to  the 
transmitting  bank — there  being  nothing  on  the  paper  to  put  it  on  its 
guard — under  these  circumstances,  and  these  only,  it  becomes  a  bona 
fide  holder,  if  it  advances  money  or  values  on  the  paper  at  that  time  ; 
but  the  mere  placing  it  to  the  credit  of  the  other  bank,  and  seeking  to 
make  the  paper  pay  an  old  debt  due  from  its  correspondent,  will  not 
make  the  bank  a  holder  for  value.     This  rule  is  dictated  by  common 
sense,  and  is  well  supported  by  the  foregoing  cases. 

413.  Of  course,  it  is  not  meant  by  this  statement,  that  the  collect- 
ing bank  cannot  place  the  proceeds  of  the  collection  to  the  credit  of 
the  transmitting  bank,  but  that,  in  the  event  that  the  transmitting 
bank  fails  before  settling  with  the  owner  of  the  paper,  the  owner  will 
not  be  precluded  from  the  credit  so  given,  but  can  still  go  on  the  col- 
lecting bank  as  for  money  had  and  received  by  it  for  his  use. 

414.  Where  the  bank  which  receives  paper  for  collection  from  its 
customer,  and  transmits  it  to  its  correspondent,  credits  the  customer 
with  the  amount  of  the  collection,  under  the  belief  that  it  has  been, 
paid  to  the  correspondent  bank,  it  can  repudiate  or  correct  the  credit, 
when  it  is  ascertained  the  collection  has  not  been  made,  on  taking 
prompt  measures  to  notify  the  customer  of  the  mistake,  so  soon  as  the 
fact  is  made  known  to  the  bank  giving  the  credit.     Even  where  the 
mistake  was  not  discovered  for  a  considerable  time — when  the  deposi- 
tor's book  had  been  balanced  several  times  in  the  meantime — yet  the 
bank  so  making  the  mistake  was  permitted  to  charge  the  customer 
therewith.     Mechanics'  Bank  v.  Earp,  4  Raull,  384. 

415.  A  bank  may  open  an  account  with  a  married  woman,  and 
may,  as  a  matter  of  course,  pay  her  checks  and  treat  her  in  all  respects 
as  a  femme  sole,  unless  it  has  actual  knowledge  of  the  fact,  or  good 
grounds  for  believing,  that  she  is  a  married  woman,  even  though  the 
funds  deposited  belonged  to  the  husband.     It  will  be  protected  in  thus 
dealing  with  her  and  paying  her  checks,  until  duly  notified  that  she  is 
married  and  of  the  true  ownership  of  the  funds.     This  is  on  the  prin- 
cipal that,  where  a  husband  suffers  his  wife  to  deal  with  his  funds  just 
as  if  they  were  her  own,  he  must  suffer  the  loss,  and  not  the  bank,  un- 
less knowledge  of  coverture  is  brought  home  to  the  bank.     Dacy  v. 
New  York  Chem.  Manufacturing  Co.,  2  Hall,  550. 

416.  If  a  married  woman  is  doing  business  for  her  own  account, 
with  the  consent  of  her  husband,  or  has  funds  of  her  own  separate  es- 
tate, and  keeps  them  separate  from  the  funds  of  her  husband,  by  his 
consent  or  knowledge,  the  bank  can  then  deal  with  her  and  pay  her 
checks,  although  it  has  knowledge  that  she  is  a  married  woman. 

417.  Where  money  is  advanced  by  a  bank  on  the  strength  of  a  bill 
of  lading  attached  to  the  discounted  paper,  this  gives  the  bank  con- 
structive possession  of  the  property  represented  by  the  bill  of  lading, 
;»nd  the  bank  can  claim  the  property  against  all  the  world,  and  it  is 
not  obliged  to  have  the  papers  registered  in  the  county  clerk's  office, 
like  a  chattel  mortgage.     It  occupies  the  position  of  a  mortgagee  in 


OF   STANDARD   DECISIONS.  63 

possession  of  mortgaged  chattels,  and  can  maintain  trover  or  replevin 
against  the  party  to  whom  the  same  was  consigned. 

418.  The  consignee  holds  it  as  bailee  for  the  bank,  and  will  not  be 
permitted  to  hold  the  property  for  payment  of  any  balance  due  him 
from  the  consignor  on  general  account.     First  National  Bank  of  Cin- 
cinnati v.  Kelly,  57  N.  Y.  34 ;  decided  1874. 

419.  Shareholders  in  the  stock  of  the  bank  have  rights  that  must 
be  protected  by  the  directors ;  in  truth,  they  are  the  parties  most  in- 
terested in  the  proper  administration  of  the  affairs  of  the  corporation. 
They  have  a  right  to  see  that  its  funds  are  properly  handled,  and  that 
prudence  and  honesty  are  used  in  the  management  of  the  affairs  of  the 
bunk ;  and,  should  the  directors  be  guilty  of  any  fraudulent  act,  vio- 
late any  provision  of  the  charter,  or  willfully  do  any  act  that  will 
bring  loss  to   the  bank — as  in   discounting  notes   in  excess  of  the 
amount  allowed  by  law,  or  declaring  a  dividend  out  of  the  capital  of 
the  bank  instead  of  out  of  its  earnings,  or  engage  in  any  speculation 
or  enterprise  not  within  the  scope  of  banking  business — the  sharehold- 
ers have  a  right  to  hold  the  directors,  or  any  one  of  them,  liable  per- 
sonally for  the  injury  thus  inflicted  upon  their  property.     Morse,  p.  451. 

420.  A  question,  which  has  given  rise  to  no  inconsiderable  amount 
of  discussion  and  been  attended  with  some  diversity  of  judicial  opin- 
ion, as  well  as  causing  much  perplexity  to  text-writers,  is  the  right 
of  the  holder  of  a  check  drawn  by  a  depositor  who  has  funds  in  the 
bank  sufficient  for  its  payment,  and  who  has  not  countermanded  the 
payment  at  the  time  of  its  presentment,  to  hold  the  bank  liable  for  its 
refusal  to  pay  when  so  presented. 

421.  Mr.  Morse,  in  his  work  on  banking,  answers  the  question,  and 
•with  some  plausibility  favors  the  view  that  such  liability  exists,  upon 
the  ground  of  priority  of  contract  between  the  holder  of  the  check 
and   the   bank — that  when   the  relation   of  bank   and   depositor  was 
created,  the  bank  undertook  to  pay  all  checks  of  the  depositor  so  long 
as  he  has  funds  subject  to  his  order ;  and  this  undertaking  on  the  part 
of  the  bank,  by  virtue  of  the   usage  and  custom  of  the  banks,  raised 
an    implied   agreement  with   the   holder  of  the  check  that  the  bank 
would  pay  it.     He  even  puts  it  stronger  by  saying,  "  We  'cannot  but 
feel  assured  that,  the  bank  in  receiving  the  deposit,  the  depositor  in 
•drawing  his  check,   and  certainly  not  the  least  of  the  three,  the  payee 
receiving  it  as  money — as  actual  cash — all  alike  in  their  respective  acts 
•contemplate  and  have  perfect  reference  to  a  well-known  usage  of  banks 
to  answer  the  demands  of  the  bearers  of  such  documents,  if  the  draw- 
er's credit  is  sufficient."   (Page  469.) 

422.  This  is  not  the  hypothesis  or  principle  that  the  drawing  of  the 
check  operates  as  an  assignment  of  so  much  of  the  fund  to  the  holder 
of  the  check  ;  for  it  is  well  settled  there  can  be  no  such  assignment 
until  there  is  an  acceptance  by  the  bank.     It  is  not  like  the  rule  that 
operates  when  a  party  draws  a  bill  or  draft  on  a  person  who  has  funds 
in  his  hands  for  that  purpose.     In  their  case,  it  would  be  an  assign- 
ment from  the  time  of  notice  to  the  drawee.     But  it  is  sought  to  be 
placed  by  him  on  an  entirely  different  principle — the  one  above  men- 
tioned— upon  the  agreement  which  is  implied  on  the  part  of  the  bank 
when  it  receives  funds  on  deposit  subject  to  the  order  of  the  depositor, 
that  it  would  pay  out  those  funds  whenever  ordered,  and  that  from  the 


64  MONROE'S  DIGEST 

nature  of  this  contract,  and  the  usage  of  banks,  the  holder  becomes  a, 
party  to  the  contract,  and  has  a  right  of  action  against  the  bank  for 
the  amount  of  the  check  ;  not  that  the  drawer  and  holder  both  can  sue 
the  bank  for  the  same  fund  in  case  it  refuses  to  pay.  The  drawer  can 
also  sue,  but  his  will  be  an  action  for  damages  for  injury  to  his  credit 
for  not  paying  his  check.  The  holder,  an  action  for  the  money  itself. 

423.  Such   is   the   reasoning,  and   such   the   conclusions  of  that 
learned  author.     Since  the  publication  of  Mr.  Morse's  book,  however,, 
two  important  cases  have  been  decided,  which  have  practically  settled 
the  question,  and  settled  it  in  opposition  to  the  views  so  warmly  advo- 
cated by  him. 

424.  The  Supreme  Court  of  the  United  States  have  met  and  de- 
cided the  simple,  naked  question,  that   the  holder  of  a  check,  before 
certification  or  acceptance  of  it  by  the  bank,  has  no  right  of  action 
against  it ;  saying,  there  is  no  privity  between  him  and  the  bank ;  it 
owes  a  duty,  to  wit :  to  pay  his  checks,  when  in  funds  to  do  so,  to  its 
customers  ;  and  he  can  maintain  an  action  against  it  for  refusing,  im- 
properly, to  do  so,  but  it  owes  no  duty  to  the  holder  of  the  check,  un- 
til it  has  by  its  own  voluntary  act  created  one ;   i.  e.,  by  certifying  the 
same,  or  by  charging  the  drawee  with  the  amount  thereof.     Bank  of 
Republic  v.  Millard,  10  Wall.  156. 

425.  Otherwise,  say  the  court  in  this  case,  "  the  anomaly  is  pre- 
sented of  a  right  of  action  upon  one  promise,  for  the  same  thing,  ex- 
isting in  two  distinct  persons  at  the  same  time."     This  case  was  not 
complicated  with  any  extraneous  facts.     The  single  question  raised 
and  decided  by  the  court  was  the  one  above  stated. 

426.  The  still  more  recent  case  of  Seventh  National  Bank  v  Cookr 
73  Penn.  St.  483,  decided  in  1873,  cites,  with  approval,  the  foregoing 
case.     And  since  the  authorities  in  this  country,  prior  to  those  two- 
cases,  were  not  settled  on  this  question,  it  is  probable  that  the  weight 
of  those  two  eminent  courts  will  induce  other  courts  to  adopt  and  fol- 
low their  reasoning.     The  better  opinion,  therefore,  in  the  present  state 
of  the  law,  would  seem  to  be  that  the  mere  holding  of  a  check  gives 
no  right  of  action  against  the  bank,  to  the  holder  thereof. 

427.  The  depositor  or  customer  of  a  bank  has  his  rights,  which 
accrue  as  the   relation  once  begins.      He  has  a  right  to  examine  the 
books  of  the  bank  as  to  the  condition  of  his  account,  to  demand  that 
the  condition  of  his  account  be  not  disclosed  to  any  one ;  to  insist  that 
the  bank  continue  in  a  usage  or  the  ordinary  course  of  dealing  with 
him  that  once  existed  ;  provided,  such  usage  was  a  proper  one. 

428.  He  has  a  right  to  sue  the  bank  when  it  pays  his  checks  in 
counterfeit  coin  or  paper.     The  right  is  to  require  the  bank  to  pay  his 
checks,  and  they  are  not  paid  if  counterfeit  coin  or  paper  is  given. 
And  he  has  a  right  to  sue  the  bank  for  damages  if  it  refuses  to  pay  his- 
check,  when  he  has  money  to  his  credit  with  the  bank,  sufficient  to  pay 
with. 

DUTIES   OF   BANKS. 

429.  Although  the  relation  of  a  bank  and  its  depositors  is  in  many 
respects  that  of  a  debtor  and  creditor  growing  out  of  a  contract,  yet, 
in  some  aspects,  it  differs  from  the  relations  existing  between  debtor 


OP   STANDARD  DECISIONS.  65 

and  creditor  growing  out  of  an  ordinary  contract.  It  is  not  a  relation  of 
trustee  and  cestue  que  trust,  as  is  generally  the  case  where  a  party  de- 
posits funds  with  another  to  hold  in  a  fiduciary  capacity. 

430.  So  an  arrest  of  the  banker  cannot  be  had  in  those  States 
where  the  debtor  can  be  arrested  for  certain  classes  of  debts,  when  he 
fails  to  pay  over  the  money  placed  in  his  bank  as  an  ordinary  deposit. 

431.  On  the  same  principle  a  banker  can  be  discharged  in  bank- 
ruptcy from  his  debts  due  depositors,  as  in  law  the  debt  is  not  regarded 
as  having  been  created  in  a  fiduciary  capacity.     Buchanan  Oil  Co.  v. 

Woodman,  4  N.  Y.  Supreme  Court  Rep.  193  ;  decided  1874. 

432.  When  the  relation  of  depositor  is  once  created  it  is  done  upon 
the  implied  understanding  that  the  bank  will  pay  out  the  funds  when- 
ever so  instructed  by  the  depositor,  and  it  becomes  the  imperative 
duty  of  the  bank  so  to  do,  whenever  the  depositor  instructs  it  in  writ- 
ing, either  in  the  ordinary  form  of  a  check  or  in  any  explicit  way,  so 
long  as  it  has  any  funds  of  the  depositor  to  his  credit. 

433.  The  bank  can  pay  out  such  funds  upon  a  verbal  order  of  the 
depositor,  but  the  risk  of  the  bank  would  be  to  make  the  necessary 
proof  that  it  was  paid  on  a  verbal  order,  should  it  come  into  dispute. 

Watts  v.  Christie,  11  Beav.  546.  It  is  the  safest  way  for  the  bank  to 
pay  out  the  funds  of  the  depositor  only  on  written  orders,  written 
without  ambiguity  as  to  the  amount,  and  showing  to  whom  it  should 
be  paid  and  where. 

434.  On  account  of  the  delicate  relations  that  exist  between  the 
bank  and  its  customers,  occupying  in  one  sense,  as  before  explained, 
the  relation  of  a  trustee  of  funds — to  be  held  for  the  convenience  of  its 
customers — and  also  on  account  of  the  great  facilities  the  officers  of 
the  bank  have  for  committing  frauds — it  is  the  duty  of  the  directors 
to  keep  a  far  greater  supervision  over  the  affairs  of  the  bank  than  is 
encumbent  upon  directors  of  other  corporations. 

435.  The  directors  of  the  bank  become,  in  their  relation  to  the 
customers,  the  bank  itself,  and  are  held  responsible  to  the  community 
for  the  doings  of  the  bank  and  its  agents,  and  it  becomes  their  duty  to 
so  watch  the  doings  of  its  officers  that  no  one  can  long  continue  in 
acts  of  dereliction  without  their  knowledge. 

436.  The  very  nature  of  the  office  of  director  is  one  of  watchful- 
ness, and  they  are  supposed  to  become  almost  daily  cognizant  of  each 
day's  doings.     And  where  they  entrust  an  officer  with  functions  which 
properly  belong  to  him,  or  where  they  suffer  a  certain  officer  to  assume 
certain  functions  not  properly  within  the  line  of  his  particular  duty, 
and  the  officer  abuses  the  trust,  the  courts  will  hold  that  the  directors 
have  made  him  their  agent,  and  hold  them  liable,  in  their  individual 
capacity,  for  the  acts  of  that  officer.     Caldwell  v.  Nat.  Mohawk  Bank, 
64  Barb.  334  ;  United  Society  of  Shakers  v.  Underwood,  Ky.  Court  of 
Appeals,  1874. 

437.  And  the  courts  will  not  permit  the  directors  of  a  bank  to  say 
they  had  no  knowledge  of  the  derelictions  of  its  officer,  or  that  he  had 
assumed  functions  outside  his  peculiar  line  of  duties,  if  any  mischief 
should  be  thereby  created,  for  the  reasons  above  stated.     It  is  their 
dut3r  to  keep   so  watchful  an  eye  over  the  doings  of  each  officer  that 
the  courts  will  infer  they  have  actual  knowledge  of  his  acts.     And  it 

5 


66  MONROE'S  DIGEST 

is  for  these  reasons  that  bank  directors  are  held  to  the  fullest  knowl- 
edge of  any  transactions  that  take  place  in  the  bank. 

438.  Of  course,  should  the  officer  do  an  isolated  act,  outside  of  his 
regular  function,  the  bank  is  not  bound  ;  but  the  act  must  not  be  re- 
peated so  often  that  it  may  be  construed  into  a  usage,  which  the  di- 
rectors in  doing  their  duty  are  bound  to  take  notice  of. 

439.  Where  any  officer  in  any  way  exceeds  his  authority  or  does  an 
illegal  or  fraudulent  act,  which  may  not  necessarily  bind  the  bank,  or 
which  may  cause  a  forfeiture  of  the  charter,  in  case  it  should  be  in  any 
way  ratified  by  the  bank,  it  becomes  the  duty  of  the  directors,  so  soon 
as  the  fact  comes  to  their  knowledge,  at  once  to  repudiate  the  act,  to 
refuse  to  receive  any  benefit  therefrom,  and  to  undo  the  transaction,  if 
it  can  be  done  without  great  injury.     And  if  the  act  has  gone  so  far 
it  cannot  be  repudiated  or  undone,  then  it  is  their  duty  to  repair  the 
injury  so  far  as  it  lies  in  their  power. 

440.  It  is  also  the  further  duty  of  the  directors  at  once  to  remove 
the  officer  who  has  thus  transcended  his  authority  or  done  the  illegal 
or  fraudulent  act.     Bank  Commissioner  v.  Bank  of  Buffalo,  6  Paige, 
497. 

441.  But  when  the  directors  neglect  their  duty  in  the  supervision 
of  the  acts  of  the  officers  of  the  bank,  and  permit,  for  a  long  time, 
some  one  officer,  the  president  or  cashier,  for  example,  to  manage  the 
whole  business  or  one  general  branch  of  it,  though  the  business  prop- 
erly belongs  to  another  officer,  yet  the  acts  of  that  officer  who  is  thus 
allowed  to  manage  will  bind  the  bank,  so  far  as  outside  parties  are 
concerned,  unless  the  statute  or  charter  of  the  bank  positively  prohib- 
ited him  from  doing  that  act.     Of  course,  the  application  of  this  prin- 
ciple only  applies  to  parties   dealing  with  the  bank  who  are  innocent 
holders  for  value  of  paper  received  from  the  bank  through  their  offi- 
cers, or  who  are  ignorant  that  he  transcends  his  authority. 

442.  The  principle  being  that,  when  the  bank  in  this  way  makes 
him  its  general  agent,  his  acts  will  bind  the  bank  in  any  act  the  bank 
itself  has  power  to  do.     Caldwell  v.  Nat.   Mohawk  Valley  Bank,  64 
Barb.  334. 

443.  One  of  the  most  important  features  in  the  business  of  banks 
is  that  of  making  discounts.     And  it  is  the  exclusive  province  of  the 
directors  to  superintend  all  discounts.     In  fact,  as  this  power  is  dele- 
gated to  them  direct  from  the  Legislature,  as  we  have  already  had  oc- 
casion to  remark,  they  cannot  delegate  it ;  they  cannot  part  with  it  or 
invest  any  officer  or  officers  with  it,  if  they  wished. 

444.  They  may  instruct  the  cashier  or  president  or  any  officer  to 
make  a  certain  discount,  or  to  allow  a  certain  class  of  paper  to  be  dis- 
counted, but  the  power  thus  given  must  be  limited  to  the  customer  to 
the  amount  of  discount   taken,  to  the  time,  etc.,  and  the  officer  must 
follow  specifically  the  instructions  given  him.     This  is  the  utmost 
power  the  directors  can  delegate.     In  fact,  the  discount  thus  ordered 
is  regarded  as  the  act  of  the  directors. 

445.  Of  course,  the  directors  can  select  a  discount  or  loan  com- 
mittee, but  the  general  management  of  discounts  is  the  duty,  and  must 
be  under  the  direct  control  of  all  the  directors.     Bank  of  United  States 
v.  Dun,  C.  Pet.  51 ;  Bank  Commissioners  v.  Bank  of  Buffalo,  6  Paige, 
437. 


OF   STANDARD   DECISIONS.  67 

446.  By  reason  of  the  trust  relation  which  the  director  occupies 
to  the  bank,  it  becomes  his  duty  not  to  take  any  position  or  use  his  in- 
fluence in  any  way  that  will  be  prejudicial  to  the  bank.     In  all  ques- 
tions that  come  before  the  board,  which  may  affect  him  personally,  it 
is  his  duty  not  to  vote  and  to  take  no  part  in  the  discussion  of  the 
question. 

447.  Where  there  is  no  direct  pi'ohibition,  the  bank  can  make  a 
loan  to  a  director ;  and  where  the  question  of  discounting  his  paper  is 
being  discussed,  it  is   the  duty  of  the  board  to  exclude  him  entirely 
from  its  deliberations,  and  to  scrutinize  more  critically  and  more  se- 
verely the  matter   under   consideration,  for  reasons  that  are  obvious, 
from  the  relations  which  he  occupies,  and  because  the  action  of  the 
board   itself  will  be  severely  scrutinized   should  it  come  before  the 
•courts.     Any  irregularity  in   such   proceedings  may  render  the  bank 
liable,  even  to  a  forfeiture  of  its  charter.     And  the  same  mischief  will 
follow  where  the  directors  permit  the  cashier  to  make  the  loan  and  do 
not  examine  his  acts,  as  it  is  their  duty  to  do.     Bank  Commissioner 
v.  Bank  of  Buffalo,  6  Paige,  497. 

448.  And  as  the  above  is  the  true  rule,  so  far  as  a  director  is  con- 
cerned, the  same  duty  devolves  upon  the  board  of  directors,  where  a 
firm  is  interested  or  makes  an  application  for  a  loan,  of  which  firm  one 
-of  the  directors  is  a  member ;  and  the  same  restrictions  apply. 

449.  From  the  very  nature  of  the  business  of  banking,  the  su- 
preme control  and  management  of  the  funds  of  the  bank  is  with  the 
•directors.     They  have  no  right  to  use  the  property  of  the  bank  for 
purposes  other  than  those  necessary  to  carry  on  the  legitimate  busi- 
ness of  banking ;  and  it  is  their  duty  to  conduct  the  affairs  of  the  bank 
in  the  manner,  according  to  their  best  judgment,  most  conducive  to  an 
increase  of  the  profits  and  an  enlargement  of  the  legitimate  business 
of  the  bank. 

450.  It  is  their  duty  to  so  use  the  corporate  funds  as  to  increase 
its  capital  by  any  legitimate  means  not  prohibited  by  their  charter, 
and  not  inconsistent  with  the  business  of  banking. 

451.  They  cannot  use  the  property  of  the  corporation  for  charita- 
ble purposes  ;  nor  can  they   give  it  away  ;  nor  subscribe  to  any  such 
object,  except  upon  authority  given  them  by  the  stockholders.     They 
.are  trustees  of  the  property  for  the  benefit  of  the  stockholders,  and  if 
they  violate  their  duty  in  this  respect,  it  becomes  a  direct  violation 
of  a  trust,  and  they  will  be  individually  liable  for  a  breach  of  the  trust. 
Frankfort  Bank  v.  Johnson,  24  Me.  406. 

452.  A  bank,  being  an  artificial  body,  can  only  act  and  speak  and 
know  through  its  organs  or  agents,  and  these  organs  are  the  officers 
and  directors.     The  latter  are  virtually  the  bank,  and  it  is  their  duty 
to  act   upon  any  question   that  pertains  to  the  interests  of  the  bank 
which  comes  to  their  knowledge.     And  the  following  question  becomes 
an  important  one  :     When  does  the  bank  have  notice  of  any  fact  which 
concerns  it  ? 

453.  It  may  be  said  that  any  fact  which  comes  to  the  knowledge 
of  a  director,  while  in  the  discharge  of  his  duties,  or  to  a  board  of 
directors,  is  knowledge  to  the  bank.     Especially  is  this  so  where  the 
board  of  directors  discuss  any  question  while  in  session.     And  knowl- 
edge received  by  one  board  of  directors  is  conclusively  presumed  to  be 


68  MONROE'S  DIGEST 

possessed  by  its  successors.     Mechanics'  Bank  v.  Seton,  1  Pet.  299  ^ 
Ful/on  Bank  v.  New  York  and  Sharon  Canal  Co.,  4  Paige,  127. 

454.  But  knowledge  obtained  by  a  director  not  in  bis  official  ca- 
pacity, but  in  bis  private  individual  cbaracter,  is  not  knowledge  of  the 
bank.     It  is  difficult  to  determine,  at  times,  when  tbe  director  receives 
tbe  information  in  his  official  or  individual  capacity.     Each  case  must 
depend  on  its  own  circumstances.     A  sure  test  is  this : 

455.  Had  tbe  officer  to  whom  tbe  knowledge  came  any  duty  to- 
perform  in  regard  to  the  matter?     If  be  bad,  then  unquestionably  his 
knowledge  will  be  considered  knowledge  of  tbe  bank.     Fulton  Bank  v, 
New  York  and  Sharon  Canal  Co.,  4  Paige,  127. 

456.  As  has  before  been  said,  it  is  tbe  duty  of  the  bank  to  pay  all 
the  checks  drawn  on  it  by  the  depositor,  so  long  as  it  has  funds  to  his 
credit.     This  was  the  condition  upon  which  the  relation  of  bank  and 
depositor  was  created,  and  the  duty  of  tbe  bank  is  to  pay  such  checks 
in  the  order  in  which  they  are  presented,  until  the  funds  of  the  depos- 
itor are  exhausted,  although  it  may  know  that,  as  a  matter  of  factr 
several  checks  are  outdrawn  by  the  depositor. 

457.  It  must  not  take  upon  itself  the  duty  of  distributing  the 
funds  pro  rata  on  all  the  checks  presented. 

458.  When  several  checks  from  the  same  depositor  are  presented 
through  the  clearing  house,  and  the  sum  of  them  all  exceeds  the  bal- 
ance of  the  depositor,  it  is  the  duty  of  the  bank  to  refuse  the  payment 
of  any  of  them. 

459.  It  cannot  say  which  it  will  pay  and  which  refuse,  nor  to  pay 
a  pro  rata  on  all  of  them.     Morse  on  Banking,  p.  248. 

460.  As  has  before  been  said,  under  the  head  "  Rights  of  Banks," 
the  bank  has  the  right  to  refuse  to  pay  a  check  drawn  for  more  funds 
than  the  depositor  had  to  his  credit.     Murray  v.  Judah,  6  Cowen,  490. 

461.  But  where  the  check  is  presented  to  the  bank  for  a  larger 
amount  than  the  drawer  has  to  his  credit,  and  the  holder  of  the  check 
is  willing  to  take  the  amount  to  the  credit  of  the  drawer,  and  credit  it 
on  the  check,  and  surrender  the  check  to  the  bank,  and  get  a  state- 
ment from  it  as  to  the  amount  received,  the  bank  is  bound  to  make  the 
paj^ment — upon  the  principle  that  the  drawing  of  the  check  by  the  de- 
positor for  an  amount  greater  than  the  balance  to  his  credit,  and  de- 
mand of  tbe  same  by  the  holder  of  the  check,  and  his  willingness  to- 
receive  the  balance,  is  an  assignment  of  the  whole  balance,  and  the 
payee  of  the  check  has  a  right  to  it.     Bromley  v.  Com.  National  Bank 
of  Pennsylvania,  as  reported  in  vol.  5,  Chicago  Legal  News,  p.  51. 

462.  According  to  the  principle  of  this  case,  the  bank  is  bound  to- 
make  this  payment,  where  the  check  is  greater  than  the  balance  to  the 
credit  of  the  depositor ;  and,  if  it   should   refuse,  and  should  pay  a 
smaller  check,  subsequently  presented,  or  if  the  depositor  should  draw 
out  his  funds,  it  would  become  liable  to  the  holder  of  the  first  pre- 
sented check  for  the  full  amount  of  the  deposit.     This  doctrine  is 
somewhat  new  and  opposed  to  adjudicated  cases  in  other  States,  and 
to  the  dicta  of  Mr.  Morse,  on  page  257,  and  other  leading  text-writer's^ 
on  this  subject,  and  is,  perhaps,  the  latest  adjudication  on  this  point, 
It  is  also  difficult  to  reconcile  this  case  with  the  case  of  Bank  of  Re- 
public v.  Millard,  10  Wall.  156,  and  Seventh  National  Bank  v.  Cookr 
73  Penn.  483. 


OF   STANDARD   DECISIONS.  69 

463.  It  is  the  duty  of  the  bank  to  refuse  payment  of  a  check 
drawn  by  a  party  who  has  subsequently  become  a  bankrupt,  so  soon 
as  it  learns  definitely  that  the  drawer  has   filed  his  petition  or  been 
forced  into  bankruptcy,  whether  before  or  after  adjudication. 

464.  The  bank  cannot  refuse  to  pay  the  check  of  a  party  who  has 
simply  committed  an  act  of  bankruptcy  ;  as,  for  instance,  giving   a 
fraudulent  preference  or  stopping  payment,  etc. 

465.  And  the  same  duty  is  imperative  when  the  bank  learns  that 
the  drawer  has  deceased  ;  its  duty  is  to  refuse  to  pay  the  check. 

466.  But  in  either  case,  that  of  bankruptcy  or  death  of  the  drawer, 
if  the  bank  should  pay  the  check  before  it  has  actual  notice  of  the  fact, 
it  will  be  protected  ;  the  same  is  true  if  a  check  is  paid  after  a  general 
Assignment  for  benefit  of  creditors. 

467.  Should,  however,  the  bank  be  guilty  of  actual  negligence  in 
obtaining  information  of  the  bankruptcy,  assignment  or  death,  where 
the  information  was  in  its  reach,  it  is  doubtful  if  it  would  be  protected 
in  paying  the  check.     In  the  case  where  the  debtor  and  drawer  of  the 
•check  had  made  a  general  assignment  for  the  benefit  of  his  creditors 
before  the  check  was  presented,  this   question  was  directly  settled  in 
Griffin,  assignee  v.  Rice,  1.  Hilton  (N.  Y.)  184. 

468.  Where  the  deposit  is  made  by  several  parties,  not  partners, 
as   where  the  deposit  is  made  by  joint   trustees,  or  where  money  is 
placed  to  the  credit  of  A,  B  and  C,  not  partners,  it  is  the  duty  of  the 
bank  to  require  that  the  signature  of  all  the  parties  owning  the  fund 
be  signed  to  the  check.     So  a  check  signed  by  one  of  several  assignees 
should  not  be  paid  ;  all  the  assignees  must  sign.     This  applies  equally 
to  assignees  in  bankruptcy. 

469.  But  where  one  of  the  trustees  or  assignees  should  abscond  or 
become  incapacitated  to  sign  a  check,  a  court  of  equity  will  order  the 
bank  to  pay  on  the  check  of  the  remaining  depositor. 

470.  And  where  checks  are  usually  signed  by  one  officer  of  a  cor- 
poration and  countersigned  by  another,  but  one  of  these  names  is  want- 
ing, payment  must  be  refused,  or  the  bank  will  be  liable.     If,  however, 
the  fund,  after  it  is  drawn  on  such  an  imperfect  check,  reaches  the 
proper  channel,  the  bank  would  be  protected. 

471.  But  a  check,  signed  by  one  of  several  administrators  or  ex- 
ecutors, would  be  sufficient  authority  to  the  bank  to  pay  it.     Junes  v. 
Stephenson,  1  Moody  &  Rob.  145 ;  Stone  v.  Marsh,  Ryan  &  M  364. 

472.  It  is  the  imperative  duty  of  the  bank  to  know  the  signatures 
of  its  depositors.     Should  it  pay  out  money  to  an  innocent  holder  of  a 
forged  check  it  can  never  recover  the  same,  nor  can  it  charge  the  de- 
positor the  amount  paid  on  the  forged  paper  ;  the  loss  must  fall  on  the 
bank.     Levy  v.  Bank  of    United   States,  4    Dall.    234 ;   Bank   of  St. 
Albans  v.  Farmers'1  Bank,  10  Yt.  141. 

473.  The  bank  is  held  to  the  strictest  diligence  ;  no  excuse  will 
avail  it ;  it  cannot  say  it  was  a  mistake  ;  it  cannot  plead  that  it  was  a 
well-executed  forgery.     If  the  signature  is  not  genuine,  that  is   suffi- 
cient. 

474.  Even  where  the  bank  should  merely  enter  the  amount  of  the 
check  to  the  credit  of  the  holder,  according  to  the   decision  of  the 
Supreme  Court  in  the  case  in  4  Dallas,  cited  above,  this  was  a  payment 
of  the  check  and  the  bank  was  not  allowed  to  recover  from  the  holder. 


70  MONROE'S  DIGEST 

475.  A  check,  altered  as  to  the  amount  to  be  paid  thereon  after 
the  depositor  signed  it,  is  as  much  a  forgery  as  if  the  signature  wa* 
forged. 

476.  But  the  above  strict  rule,  as  to  the  duty  of  the  bank  to  know 
the  signatures  of  its  depositors,  does  not  apply  where  the  body  of  the 
check  has  been  changed,  in  the  case  where  the  drawer  has  written  the 
check  so  carelessly  that  it  can  be  altered  as  to  the  amount  by  adding^ 
to  or  changing  the  figures  or  words,  in  such  a  manner  that  it  would 
not  attract  attention  ;  the  loss  in  that  case  must  be  that  of  the  drawer. 

477.  For  instance,  he  may  sign  a  check  in  blank,  and  it  may  be 
filled  up  for  any  amount,  and  the  bank  will  be  protected  in  paying  itr 
unless  it  had  its  suspicions  aroused  in  some  way. 

478.  The  handwriting  of  the   body  of  the  check  may  be  different 
from  the  signature,  for  a  drawer  may  sign  a  check  filled  up  by  his  order 
— the  bank  is  not  put  on  inquiry  from  this  circumstance  only. 

479.  If  the  check  is  signed  before  it  is  properly  filled  up,  and  the 
filling  up  or  alteration  is  afterwards  made,  the  loss  falls  on  the  drawer,. 
provided  the  alteration  is  done  so  as  not  to  attract  attention  ;  and  the 
bank  will  be  protected  when  it  pays  a  check  which  appears  properly 
filled  up  when  presented  to  it  for  payment. 

480.  But  should  the  bank  have  reasonable  grounds  for  suspicion 
that  the  filling  up  of  the  check  was  improperly  made,  or  if  the  altera- 
tion was  done  in  a  manner  so  awkward  as  to  arouse  the  suspicion  of 
the  bank  officer,  in  the  exercise  of  proper  diligence,  then,  if  the  bank 
should  pay  the  check  before  ascertaining  from  the  drawer  whether  the 
alteration  is  made  with  his  consent,  it  would  be  held  to  the  same  strict- 
ness as  if  the  signature  was  forged.     Morse  on  Banking,  p.  302. 

481.  The  payment   of  a  raised  or  otherwise  altered  check,  as  be- 
tween the  drawer  and  bank,  subjects  the  bank  to  suffer  the  loss.     Butr 
as  above  said,  if  the  check  is  drawn  so  carelessly  that  it  can  be  changed 
without  arousing  suspicion,  then  the  loss  must  fall  on  the  drawer  who 
signed  a  check  so  carelessly.     Goodman  v.  Eastman,  4  N.  H.  455. 

482.  But  a  payment  of  a  raised  check,  as  between  the  bank  making 
the   payment   and  the  bank   from  whom   it  was   received,  the  rule  is 
otherwise. 

483.  In  Espy  v.  Bank  of  Cincinnati ,18  Wallace,  604,  the  facts  were 
these:     A  broker  brought  a  check  to  the  bank  on  which  it  was  drawn, 
and  asked  whether  it  was  good,  that  he  was  about  to  purchase  it  from 
a  stranger  and  wanted  to  satisfy  himself  that  the  check  was  good. 
The  proper  bank  officer  examined  it  and  said,  "  It  is  all  right,  send  it 
through  the  clearing  house."     The  broker  sent  it  through  the  clearing 
house  and  the  bank  paid  it.     After  payment  tbe  bank  discovered  that 
it  was  altered,  and  demanded  back  the  money  and  brought  suit  for  it. 
The  Supreme  Court  of  the  United  States  held  that  the  bank  was  en- 
titled to  recover,  stating  that  the  bank  on  examining  the  check  the 
first  time  did  not  seem  to  have  had  its  attention  directed  to  anything  but 
the  genuineness  of  the  drawer's  signature  and  the  state  of  his  account. 

484.  The  court  would  have  probably  held  differently  had  the  bank 
certified  in  writing  that  the  check  was  good,  as  this  would  have  been 
evidence  that  the  whole  check  was  scrutinized  bjr  the  bank  and  adopted 
as  its  own  paper,  especially  if  the  alteration  was  of  such  a  character 
that  a  careful  examination  would  have  excited  suspicion. 


OF   STANDARD   DECISIONS.  71 

485.  So,  where  there  is  a  doubt  on  the  part  of  the  bank,  after  it 
has  paid  the  check,  as  to  the  genuineness  of  the  signature  of  the 
drawer,  and  the  check  is  shown  to  him,  and  he  pronounces  the  signa- 
ture to  be  his,  and  it  nevertheless  proves  to  be  forged,  the  loss  will  be 
that  of  the  bank  :  upon  the  principle  that  the  bank  is  bound  to  know 
the  signature  of  its  depositors,  and  the  right  of  the  bank  becomes  fixed 
on   payment   of  the   check,  and   the   answer   of  the   depositor,  given 
honestly,  though  erroneously,  in  an  effort  to  aid   the  bank,  does  not 
alter  its  position  or  responsibilit}'.     Probably,  however,  if  at  the  time 
the   bank   should    inform   the   customer   that   it   could  save  itself  by 
prompt  repudiation,  if  the  signature  is  forged,  he   might   then    be 
estopped.     Morse,  p.  310. 

486.  The  bank  is  bound  to  have  regard  to  the  amount  written 
in  letters  on  the  check  instead  of  the  Arabic  figures,  where  the  two 
differ — in  fact,  the  figures  are  not  material  to  the  check  and  may  be 
wholly  disregarded.     Smith  v.  Smith,  1  B.  I.  398. 

481.  By  the  common  law,  the  obligation  of  the  bank  is  only  to 
pay  out  money  on  checks  when  made  payable  "  to  bearer."  But  the 
custom  has  grown  so  universal  to  draw  a  check  payable  to  the  order 
of  a  certain  pei'son,  and  banks  have  so  universally  recognized  the  cus- 
tom, that  it  is  now  binding  on  the  banks  to  pay  checks  when  drawn 
"  to  order." 

488.  But  it  is  an  imperative  duty  of  the  bank  to  know  that  the 
signature  of  the  person  to  whose  order  the  check  is  made  payable,  and 
who  indorses  it,  is  genuine,  and  should  the  instrument  be  forged  the 
bank  is  not  exonerated  by  paying  it. 

489.  The  bank  must  satisfy  itself  the  indorsement  is  genuine,  and 
that  the  party  presenting  the  check  is  the  payee  or  indorsee,  and  may 
refuse  payment  until  it  is  so  satisfied  ;  and  it  is  its  duty  to  hold  suffi- 
cient funds  to  pay  it,  should  it  turn  out  that  the  partj'  presenting  the 
check  is  the  proper  party  to  receive  the  funds.     Holt  v.  Ross,  54  N.  Y. 
473. 

490.  It  may  seem  a  severe  responsibility  to  hold  the  bank  to  as- 
certain the  genuineness  of  the  signature  of  the  indorser,  and  that  the 
party  presenting  it  for  payment   is  the  proper  party  to  receive  the 
funds,  but  the  universality  of  the  custom,  and  the  acquiescence  of  the 
banks  in  the  custom,  makes  it  now  a  part  of  the  contract  made  with 
the  customer  at  the  time  he  makes  his  deposit,  that  the  bank  will  pay 
checks  drawn  "  to  order,"  and  the   bank   assumes  the    risk    thereby 
created  ;  and  should  the  bank  pay  a  check  to  any  person  not  properly 
authorized  to  receive  it,  it  thus  being  no  such  pa3rment  as  will  protect 
the  bank,  the  true  owner  of  the  check  can  compel  the  bank  to  pay 
to  him.     Seventh  Nat.  Bank  v.  Cook,  73  Penn.  483. 

491.  However  severely  the  duty  may  practically  operate  on  the 
bank,  yet  it  has  undertaken  it  and  must  abide  the  consequences ;  and, 
where  a  check  or  draft  is  presented  for  payment  by  a  payee  or  indorsee 
who  is  not  personally  known  to  the  bank  and  has  to  be  identified,  it  is 
not  safe  for  the  bank  to  take  the  verbal  identification  of  the  person  who 
proposes  to  identify  him,  for  then  the  bank  could  not  hold  him  should 
it  turn  out  that  he  was  mistaken,  but  if  lie  knowingly  misrepresented 
the  party's  identity,  the  bank  could  hold  him  liable.     The  only  safe 
course  for  the  bank  to  pursue  is  to  require  the  indorsement  of  arespon- 


72  MONKOE'S  DIGEST 

Bible  party  to  the  paper  before  paying  it  to  a  stranger.  Merchants'. 
Nat.  Bank  v.  Sells  &  Co.;  decided  by  Circuit  Court,  St.  Louis  county, 
Mo.  June,  1875. 

492.  When  a  bank  accepts   a   check,  or  certifies  it  "  good,"  it 
thereby  enters  into  a  new  obligation  toward  the  payee  or  indorsee,  and 
the  relation  of  debtor  and  creditor  at  once  comes  into  existence  between 
the  bank  and  the  holder  of  the  check.     The  bank  thereby  admits  the 
genuineness  of  the  signature  of  the  drawer  and  the  right  of  the  holder 
to  receive  the  funds. 

493.  It  is  then  bound  to  retain  sufficient  funds  of  the  drawer  to 
pay  the  check  whenever  called  upon,  as  this  virtually  transfers  the 
fund  from  the  credit  of  the  drawer  to  that  of  the  holder  of  the  check, 
and  the  bank  cannot  be  heard  to  say  the  drawer  had  no  funds.     Mer- 
chants'1 Bank  v.  Nat.  Bank,  10  Wallace,  604. 

494.  Nor  can  the  bank  then  avoid  its  liability  to  the  holder  of  the 
check,  even  should  the  signature  of  the  drawer  be  forged,  unless  the 
holder  knew  it  was  forged. 

495.  It  is  the  duty  of  the  bank  not  to  allow  a  depositor  know- 
ingly to  misappropriate  funds  which  are  to  his  credit  as  trustee  or  in 
any  other  fiduciary  capacity — as  not  to  allow  him  to  check  against  the 
trust  fund,  to  be  used  in  placing  same  to  his  individual  credit,  or  for 
other  individual  purposes.     Of  course,  if  the  bank  had  no  knowledge 
that  the  trustee  intended  to  misappropriate  it,  would  be  protected  in 
paying  his  checks.     Mechanics'  Bank  v.   Schaumberg,  38  Mo.  228  ; 

Van  Allen  v.  Am.  Nat.  Bank,  52  N.  Y. ;  decided  1873. 

496.  So,  where  an  agent  or  attorney  in  fact  uses  the  funds  of  his 
principal  in  the  discharge  of  his  private  debt  to  the  bank,  or  to  any 
other  person,  and  there  is  any  possibility  of  fixing  the  bank  with  col- 
lusion or  knowledge  of  the  transaction  and  breach  of  trust,  the  bank 
will  be  liable  for  its  misappropriation. 

49*7.  The  duty  of  the  bank  only  goes  to  the  extent  to  see  the 
check  is  signed  so  as  to  correspond  exactly  with  the  name  and  office 
in  which  it  was  deposited,  and  if  satisfied  on  this  point,  it  will  be  pro- 
tected in  paying  it,  unless  it  should  have  knowledge  of  the  intention 
to  misappropriate  it.  For  instance,  if  the  deposit  was  in  the  name  of 
A,  as  trustee  or  as  agent  for  B,  the  check  should  be  signed,  "  Trustee 
for  B,"  or,  "  Agent  for  B  " ;  and  not  "  Trustee,"  or  "  Agent." 

498.  It  is  the  duty  of  a  bank  to  hold  a  fund,  about  which  there 
is  a  dispute  as  to  the  true  ownership,  until  the  question  can  be  settled 
as  to  who  is  the  proper  party  to  receive  the  fund. 

499.  Without  any  notice  of  another  claimant  the  bank's  duty  is  to 
pay  the  fund  on  the  check  of  the  party  in  whose  name  the  deposit  was 
made,  and  it  will  be  protected ;  but  after  the  controversy  arises  con- 
cerning a  claim,  the  bank  should  hold  the  fund  and  not  pay  to  either 
claimant,  after  it  has  reliable  information  the  controversy  has  arisen, 
until  the  matter  is  settled.     Farmers'1  and  Mechanics'1  National  Bank 
v.  King,  57  Penn.  202. 

500.  So,  if  the  bank  is  garnished,  it  should  not  pay  out  the  fund  to 
any  person  until  discharged,  unless  it  is  secured  by  a  bond  of  indemnity. 

501.  The  bank  can  pay  out  the  fund  to  either  claimant,  if  the 
claimant  will  properly  indemnify  the  bank,  so  that  it  will  suffer  no  loss 
iu  case  the  party  receiving  it  is  not  the  proper  party. 


OF   STANDARD   DECISIONS.  73 

502.  If  the  deposit  is  made  by  a  party  in  an  official  capacity,  his 
successor  in  office  is  the  proper  party  to  withdraw  the  fund  ;  or,  if  the 
deposit  was  made  by  the  party  as  executor  or  administrator,  the  ad- 
ministrator de  bonis  non  of  the  estate  of  the  prior  deceased  is  the 
proper  part}7  to  draw  out  the  fund,  and  not  the  administrator  of  the 
administrator.     Morse,  p.  276. 

503.  Usually,  the  president  of  a  corporation  is  not  the  proper  of- 
ficer to  check  out  its  funds  on  deposit  in  a  bank,  unless  usage  to  that 
effect  is  shown,  and  it  is  the  duty  of  the  directors  to  see  that  the  funds 
so  deposited  by  a  corporation  are  designated  in  such  a  manner  that 
only  the  proper  officer  of  the  corporation  can  check  them  out. 

504.  Should  they  permit  the  funds  of  the  corporation   to  be  de- 
posited  in   a  manner  which  does  not  clearly  show  that  these  were 
corporation  funds,  and  so  as  to  lead  the  bank  where  they  are  deposited 
into  thinking  they  were  the  individual  funds  of  the  president,  and 
this  latter  bank  should  allow  him   to  withdraw  the  funds  on  his  in- 
-dividual  check,  and  if  he  should  misappropriate  them,  the  bank  of  de- 
posit would  not  be  liable ;  the  loss  will  fall,  and  properly,  on  the  bank 
guilty  of  making  the  deposit  in  so  loose  a  manner  as  to  mislead  its 
correspondent.     Fulton  Bank  v.  Sharon  Canal  Co.,  4  Paige,  127. 

505.  Also,  where  a  bank  receives  paper  for  collection  and  receives 
the  proceeds  of  it,  it  is  bound  to  pay  to  the  party  or  bank  from  whom 
it  received  it  for  collection,  and  should  do  so  at  once,  either  by  voluntary 
remittance  or  upon  order. 

506.  But  should  notice  be  given  to  the  collecting  bank  that  an- 
other is  the  true  owner  of  the  paper,  and  this  notice  is  received  before 
it  pa}*s  the  money  over  to  the  part}7  from  whom  it  received  the  paper 
for  collection,  the  bank  is  bound  to  the  true  owner.      Union  Bank  v. 
Johnson,  9  Gill  &  Johns,  297. 

507.  The  bank  is  under  legal  obligations  to  the  drawer  to  pay 
all  checks  drawn  by  him  against  his  balance  at  any  time  when  called 
upon  after  the  check  is  made  payable. 

508.  Checks  are  payable  at  any  time  after  their  dates ;  and  the 
drawer  can  ante  date  or  post-date  them  ;  the  former  are  payable  im- 
mediately, but  the  latter  not  until  the  day  they  are  dated,  and  are  not 
entitled  to  days  of  grace.     It  would  be  highly  improper  for  the  bank 
to  pay  them  before  the  day  of  their  date. 

509.  Should  the  bank  see  proper  to  pay  it  before  its  date,  it  does 
so  at  its  own  risk,  for  it  is  not  ordered  by  the  drawer,  to  pay  before. 
In  the  meantime,  the  drawer  may  revoke  or  countermand  its  payment, 
which  he  has  a  perfect  right  to  do,  or  he  may  draw  out  all  his  funds 
before  the  day  of  its  date.     Mohawk  Bank  v.  Roderick,  10  Wend. 
304  ;  Harker  v.  Anderson,  21  Wend.  372. 

510.  And    a    post-dated    check    that   falls    due    on  Sunday  or   a 
legal  holiday,  is  not  payable  the  day  before,  like  a  bill  or  note,  but  pre- 
«entment  must  not  be  made  until  the  day  after,  as  the  bank  is  not 
bound  to  pay  until  then  ;  and  a  demand  made  and  refusal  had  on  the 
day  before,  will  excuse  an  indorser,  unless  the  error  should  be  cor- 
rected by  a  second  demand,  made  on  the  day  after  Sunday  or  the  legal 
holiday.     Morse,  315  ;  Salter  v.  Burt,  20  Wend.  205. 

511.  An  important  feature  in  the  business  of  banks,  is  that  of  re- 
ceiving checks,  notes  and  bills  of  its  customers,  or  others,  for  collection. 


74  MONROE'S  DIGEST 

When  a  bank  undertakes  to  make  collections,  either  upon  checks,  notes 
or  bills,  its  duties  to  its  customer  begin.  The  power  to  assume  these 
duties  is  inherent  in  all  hanks,  and  become  part  of  its  every  day  busi- 
ness. And  when  the  bank  undertakes  the  collection  of  any  paper,  it 
is  incumbent  upon  it  to  attend  to  it  in  the  best  possible  manner  for  the 
interest  of  its  customer. 

512.  It  is  not  bound  to  institute  suit  upon  any  paper  indorsed  to  it 
for  collection,  although  the  indorsement  is  done  in  such  a  manner  as  to- 
vest  it  with  the  legal  title,  unless  specially  instructed  to  sue.     It  can 
sue,  however,  in  order  to  collect,  if  it  wishes. 

513.  In  case  it  does  undertake  to  collect  by  suit,  the  bank  is  bound 
to  employ  the  proper  legal  agents  to  collect  it ;  should  it  be  negligent 
in  the  selection  of  its  agent,  and  loss  should  follow  by  reason  of  the 
negligence,  as  in  case  of  entrusting  the  collection  to  a  notoriously  in- 
efficient or  untrustworthy  attorney,  the  bank  would  be  responsible  to 
the  owner  of  the  paper. 

514.  The  general  duties  which  devolve  upon  a  bank  undertaking 
collections,  are  to  be  determined  by  the  character  of  the  paper  and  the 
place  where  it  is  made  payable.     For  instance,  the  duties  may  be  sim- 
ple where  the  paper  is  to  be  collected  in  the  same  town  with  the  bank 
receiving  it ;  it  may  only  have  to  present  it  to  the  bank  where  payable, 
or  to  the  drawer  or  acceptor,  and  if  not  duly  honored,  have  it  pro- 
tested.    Morse,  p.  325. 

515.  The  general  doctrine  may  be  said  to  be,  that  when  a  bank 
undertakes  to  make  a  collection,  it  is  its  dut}',  whether  charging  com- 
missions or  not,  to  use  and  exercise  reasonable  skill  and  diligence  in  all 
the  necessary  acts  incident  to  the  collection,  and  will  not  be  allowed  to- 
plead  want  of  consideration.     The  keeping  of  the  customer's  discount, 
or  the  expectation  of  being  able  to  hold  the  money  until  called  for,  ia 
sufficient  consideration.     Smedes  v.  Utica  Bank,  20  Johns.  372. 

516.  The  bank  where  the  paper  for  collection  is  deposited,  whether 
it  be  a  bank  at  which  the  paper  is  payable  or  not,  is  the  agent  of  the 
holder  or  depositor,  and  not  of  any  other  party..    Its  duty  consists  in 
acting  for  the  interest  of  the  depositor  and  to  collect  the  amount  due 
upon  the  paper,  or  ascertain  by  practical  effort  that  it  is  not  collect- 
able within  its  range  of  making  collections.     Those  liable  upon  the 
paper  by  paying  the  amount  due  upon  it  to  the  bank  holding  it  for  col- 
lection and  taking  it  up,  have  done  all  that  is  necessary  to  protect 
themselves.    They  are  not  required  to  see  that  the  money  finally  reaches- 
the  hands  of  the  party  entitled  to  it.      Ward  v.  Smith,  7  Wall.  447. 

517.  It  is  its  duty  to  make  the  presentment  demand,  and  give 
notice  of  the  dishonor  of  the  paper,  and  perform  all  the  necessary  act* 
to  hold  the  indorsers  or  drawers,  in  accordance  with  the  laws  of  the 
place  where  the  same  is  made  payable.     Should  the  paper  come  from  a 
distance  for  collection,  it  is  still  its  duty  to  follow  the  laws  and  customs- 
of  the  place  where  made  payable,  in   the   presentment  demand  and 
notice,  unless  the  correspondent  gives  instructions  otherwise,  and  then- 
it  is  bound  to  follow  such  instructions,     ttosup  v.  Nininger,  5  Minne- 
sota, 523. 

518.  Where  the  bank  deviates  from  the  customary  mode  of  making 
collections,  as  where  it  sends  paper  to  a  distance  by  private  messengerr 
instead  of  by  mail  or  express,  or  where,  in  cities  having  a  clearing 


OF   STANDARD   DECISIONS.  7& 

house,  it  presents  the  check  over  the  counter  of  the  drawee's  bank,  and 
the  payment  is  refused,  whereas  if  it  had  gone  through  the  clearing 
house  it  would  have  been  paid,  all  these  and  similar  modes  are  agencies 
employed  by  it,  and  for  the  default  of  the  same  the  bank  is  bound. 
But  if  the  deviation  is  by  reason  of  special  instructions  from  the  cus- 
tomer, the  rule  is  different. 

519.  It  is  the  duty  of  the  bank  to  select  a  proper  agent,  when  it  is- 
necessary  to  have  the  services  of  one,  such  as  a  notary,  so  that  all  the 
details  incident  to  proper  demand  and  notice  will  be  properly  performed. 

520.  The  bank  may  make  itself  liable  by  selecting  an  improper 
notary,  who,  from  neglect  or  ignorance,  causes  loss  to  fall  upon  the 
owner  of  the  paper.     If,  however,  it  selects  a  proper  notary,  as,  if  it 
selects  one  that  is  ordinarily  employed  to  do  its  own  protesting,  this 
would  be  strong  evidence  that  the  bank  did  its  duty.     The  duty  of  the 
bank  would  have  been  done,  and  then,  if  such  a  notary  should  commit 
an  error,  the  bank  would  not  be  bound.     But  if  the  bank  has  a  notary 
in  its  employ  on  a  salary,  he  becomes  the  agent  of  the  bank,  and  it  is 
responsible  for  all  his  errors  and  negligence.     Stacy  v.  Dane  Co.  Bankr 
12  Wis.  629  ;  Geihard  v.  Boatmen's  Sav.  Inst.,  38  Mo.  60  ;  Citizens' 
Bank  v.  Howell,  8  Md.  530. 

521.  Where  the  instrument  received  for  collection  is  a  check,  the 
duties  of  the  bank  become  somewhat  more  complicated.     Jforse,  p.  326. 

522.  The  bank  becomes  the  agent  of  the  depositor  of  the  check 
for  collection,  and  it  is  bound  to  present  it  within  a  certain  time,  if  the 
same  is  drawn  on  a  bank  in  the  same  place.     Usually  this  time  is  until 
the  close  of  banking  hours  on  the  business  day  next  following  that  on 
which  the  bank  comes  into  possession  of  the  check.     Hare  v.  Heutzr 
10  C.  B.  65  ;  Boddington  v.  Schleuber,  4  B.  &  A.  752. 

523.  Of  course,  circumstances  such  as  the  usual  custom  of  the 
bank,  or  special  instructions  from  the  depositor,  may  modify  or  change 
this  rule.     The  depositor  has  the  right  to  suppose  that  the  bank  will 
do  its  duty  and* use  the  established  system  of  the  place,  whatever  that 
may  be,  in  making  presentment. 

524.  The  bank's  duty  is  to  present  the  check  to  the  drawee  bank 
in  due  time.     If  there  is  a  clearing  house  in  the  place  where  the  re- 
ceiving bank  is  situate,  banks  generally  use  this  mode  of  presentment,, 
as  this  is  a  sufficient  presentment  to  the  drawee  bank.     But,  should 
the  depositor  give  other  instructions  as  to  the  time  and  mode  of  pre- 
sentment, as  that  it  should  be  presented  at  once,  and  not  wait  for  the 
delays  incident  to  the  clearing-house  system,  it  is  the  duty  of  the  bank 
to  follow  instructions ;   otherwise,  if  loss  should  follow,  it  would  be 
responsible. 

525.  And,  following  the  above  doctrine,  a  question  of  very  great 
importance  to  banks  presents  itself,  governed  by  the  same  principle — 
a  question  on  which  the  courts  of  the  different  states  have  held  oppo- 
site opinions.     It  is  as  to  the  liability  of  the  bank  that  receives  the 
paper  for  collection,  when  it  is  made  payable  in  a  place  other  than 
where  the  receiving  bank  is  located. 

526.  The  courts  of  New  York  and  Ohio  seem  to  be  fixed  in  hold- 
ing that  the  receiving  and  transmitting  bank  is  responsible  for  all  the 
acts  of  its  correspondent  bank,  and  if  the  money  is  lost  in  any  way,, 
the  receiving  bank  is  responsible  to  the  owner  of  the  paper  ;  or  if  the 


76  MONROE'S  DIGEST 

bank  to  which  the  collection  is  sent  is  guilty  of  any  negligence  in  hav- 
ing proper  demand  made,  or  fails  after  the  money  is  received,  the  trans- 
mitting bank  is  responsible.  The  decisions  of  these  courts  are  based 
on  the  old  doctrine,  that  the  principal  is  responsible  for  all  the  acts  of 
its  agents,  whether  banks  or  notaries  ;  that  the  bank  undertook  the 
collection  of  the  paper,  and  can  select  any  means  to  accomplish  this  it 
may  see  fit,  and  if  it  sees  fit  to  collect  through  subagents  or  other 
banks,  it  makes  its  own  selection  of  these  agents,  and  should  be  held 
for  the  neglect  or  failure  of  these  agents  to  do  their  duty  ;  that  if  it 
does  not  wish  to  take  this  risk  upon  itself,  it  can  refuse  the  collection 
in  distant  places,  or  make  a  special  contract  to  limit  its  liability.  This 
reasoning  is  not  without  force,  but  as  New  York  and  Ohio  are  alone  in 
this  ruling,  it  cannot  be  considered  as  an  established  doctrine,  and  is 
opposed  by  the  weight  of  authority.  Of  course,  in  these  two  states  it 
will  govern,  but  the  doctrine,  we  think,  is  not  sound,  and  will  not  pre- 
vail elsewhere.  The  leading  cases  in  New  York  and  Ohio  on  this  point 
are— Allen  v.  Merchants'  Bank,  15  Wend.  482,  and  22  Wend.  215 ; 
Reeves  v.  State  Bank  of  Ohio,  8  Ohio  St.  465. 

527.  But  the  other  state  courts  before  which  the  question  has 
Arisen,  and  the  Supreme  Court  of  the  United  States,  hold  to  the  doc- 
trine stated  above,  i.  e.,  to  the  rule  which  governs  a  bank  in  the  selec- 
tion of  a  notary  where  the  paper  is  paj'able  in  the  place  of  the  receiv- 
ing bank,  that  the  duty  of  the  bank  ceases  with   the  selection  of  a 
proper  notary.     The  reasoning  is  this  :  when  a  party  deposits  his  paper 
in  his  own  bank  for  collection,  which  paper  is  made  payable  at  a  distant 
place,  he  knows  or  is  bound  to  know  that  the  receiving  bank,  in  order 
to  do  its  duty  in  collecting  ha.s  to  transmit  the  paper  to  its  corres- 
pondent at  or  nearest  the  place  where  the  paper  is  payable,  in  order 
that  the  same  may  be  duly  presented  for  payment,  and  if  not  paid,  due 
demand  and  notice  can  be  given  ;  for  it  cannot  be  supposed  that  the  re- 
ceiving bank  would  send  its  own  agent  or  notary  to  the  distant  place, 
perhaps  thousands  of  miles,  to  present  the  paper  for  payment,  and  if 
not  paid  to  duly  protest  it.     And  it  entered  into  the  implied  contract, 
made  with  the  receiving  bank  at  the  time,  that  it  should  transmit  the 
paper  to  its  correspondent  nearest  to  the  place  where  the  paper  is  made 
payable ;  that  when  the  receiving  bank  so  transmits  the  paper,  the 
correspondent  bank  or  its  notary  becomes  the  agent,  not  of  the  trans- 
mitting bank,  but  of  the  true  owner  of  the  paper,  and  is  responsible  to 
him  for  its  neglect  or  defaults. 

528.  Of  course,  the  receiving  bank  must  not  be  guilty  of  any  negli- 
gence in  selecting  an  improper  bank  to  which  to  transmit  the  paper. 
Some  of  the  leading  cases  that  hold  this  doctrine  are — Dorchester  and 
Milton  Bank  v.  New  England  Bank,  1   Gush.  177;  Lawrence  v.  Ston- 
ington  Bank,  6  Conn.  521 ;  JEtna  Ins.  Co.  v.  Alton  City  Bank,  25  Ills. 
243  ;  Bank  of  Washington  v.  Triplett,  1  Peters,  25  ;  decision  by  Chief 
Justice  Marshall.     And,  in  Missouri,  in  Daly  v.  Butchers'  and  Drovers' 
Bank,  56  Mo.  94 — decided  in  March,  1874 — the  court  reach  the  same 
conclusion  after  reviewing  all  the  decisions  in  the  other  states.     And, 
Mr.  Morse,  in  his  treatise,  after  going  fully  into  the  doctrine,  comes  to 
the  same  conclusion. 

529.  When  the  depositor  leaves  the  paper  for  collection  and  gives 
the  receiving  bank  any  instructions  as  to  its  transmission  or  otherwise, 


OF  STANDARD   DECISIONS.  77 

it  is  the  duty  of  the  bank,  as  we  have  said,  to  follow  those  instructions 
implicitly,  as  where  the  depositor  instructs  it  sent  in  a  certain  way,  as 
by  express,  and  to  a  certain  bank,  and  to  be  presented  and  payment 
demanded  in  a  certain  way — and  if  any  loss  should  occur,  the  bank 
will  not  be  liable,  if  it  has  followed  those  instructions. 

530.  But,  where  no  instructions  are  left  and  where  the  laws  of  the 
place  where  paper  is  payable  differ  from  the  place  from  which  it  is  sent, 
it  is  the  duty  of  the  bank,  of  its  own  accord,  to  transmit  instructions 
to  its  correspondent  as  to  the  mode  of  demand  and  protest,  to  hold  the 
indorsers — if  it  is  necessary  to  do  so  in  a  manner  different  from  the 
law  or  custom  where  the  paper  is  payable,  in  order  to  hold  some  or  all 
of  the  indorsers.     Allen  v.  Merchants'1  Bank,  22  Wend.  215. 

531.  Where  the  collection  passes  through  several  banks,  each  is 
bound  to  the  holder  for  its  failure  to  transmit  to  its  next  correspond- 
ent, and  is  liable  to  a  suit  direct  from  him.     Lawrence  v.  Stonington 
Bank,  6  Conn.  521. 

532.  After  the  bank  receives  paper  for  collection,  it  assumes  cer- 
tain obligations  to  the  holder,  which  it  must  attend  to  promptly.     It 
must  at  once  forward  the  same  to  its  correspondent  at  or  near  to  where 
the  drawer  or  acceptor  lives.     Should  the  paper  be  returned  to  it  un- 
paid or  unaccepted,  it  is  its  duty  to  at  once  notify  the  holder  of  the 
same.      Wingate  v.  Mechanics'  Bank,  10  Burr.  107. 

533.  If  the  paper  is  to  be  accepted,  it  is  the  duty  of  the  bank  ta 
procure  the  acceptance  in  accordance  with  the  terms  of  the  draft  and 
by  the  party  upon  whom  it  is  drawn,  and  the  acceptance  must  be  ob- 
tained  unconditionally   and   absolutely — as,    for   instance,   the   bank 
should  not  permit  the  drawer  to  accept  in  words  which  changes  the 
form  of  the  draft,  to  make  it  payable  at  another  time  or  in  any  kind 
of  payment  than  money,  or  to  be  accepted  by  a  person  other  than  the 
drawee. 

534.  And,  if  it  should  take  an  acceptance  other  than  as  directed, 
it  should  at  once  notify  the  holder,  with  the  view  to  his  recognition  of 
the    same,   which,   if    had,  will   exonerate   the  bank   from   liability. 
Walker  v.  Bank  of  State  of  New  York,  9  N.  Y.  582. 

535.  In  the  absence  of  any  special  agreement  or  instructions,  the 
usage  and  custom  and  law  of  the  place  where  paper  is  to  be  paid  must 
prevail,  and  the  bank  can  in  safety  use  no  other  course. 

536.  Where  a  bank  issues  its  notes  and  bills,  which  circulate  as 
money,  and  any  one  comes  into  possession  of  the  same  for  value,  the 
relation  of  debtor  and  creditor  exists,  and  the  bank  is  bound  to  accept 
its  own  notes  and  bills  in  payment  of  debts  due  it,  however  much 
they  may  have  depreciated. 

537.  The  debtor  of  the  bank  has  a  right  to  set  off  its  bills  against 
any  debt  the  bank  may  hold  against  him. 

538.  But,  should  the  bank  become  insolvent,  and  be  placed  in  the 
hands  of  a  receiver,  then  the  debtor  of  the  bank  can  only  set  off  the 
bills  of  the  bank   for  their  face  value  when  he  had  come  in  possession 
of  them,  prior  to  the  insolvency  of  the  bank.     Bruyn  v.  Receiver,  9 
Cowen,  413  n. 

539.  The  above  rule,  of  course,  has  full  operation  where  the  note 
or  paper  held  by  the  bank  is  made  payable  in  its  own  bills,  no  matter 
how  much  the  bills  may  be  depreciated  in  value.     Morse,  403. 


78  MONROE'S  DIGEST 

540.  Where  a  party — the  bona  fide  holder  of  bills  of  a  bank — 
should  lose  them  by  fire,  and  be  in  a  condition  to  fully  describe  them 
and  prove  their  destruction,  it  is  the  duty  of  the  bank  to  make  up  the 
loss — nay,  it  is  bound  to  do  it ;  but  it  is  otherwise,  if  the  bill  is  acci- 
dently  stolen  or  lost,  for,  being  negotiable  in  this  case,  the  finder  is  en- 
titled to  the  bill,  or  may  use  it.     Morse,  p.  408. 

541.  Where  it  is  sought  to  hold  the  indorser  of  a  check,  a  different 
rule  prevails   from  where  it  is  sought  to  hold  the  drawer  of  it.     In 
seeking  to  hold  the  drawer,  a  demand  for  payment  is  good,  within  al- 
most any  reasonable  time,  unless,  indeed,  the  drawer  can  show  that  he 
lias  been  injured  by  the  delay — as,  for  instance,  that  the  drawee-bank 
failed.     But,  in  seeking  to  hold  the  payee  or  indorser,  the  check  must 
be  presented,  and  notice  of  non-payment  given  with  the  same  diligence 
as  is  required  in  notes  and  bills  of  exchange. 

542.  This  subject  is  of  such  great  practical  importance  that  we 
shall  quote  quite  at  length  from  a  leading  case  on  this  topic.     The 
opinion  is  that  of  Judge  Bronson,  in  Smith  v.  Jones,  20  Wend.  192  : 

543.  "  Checks  are  governed,  in  several  particulars,  by  the  same 
rules  that  prevail  in  relation  to  inland  bills  of  exchange,  payable  either 
on  demand  or  at  a  given  number  of  days  after  sight.     The  holder  can 
recover  against  the  indorser  only  when  he  has  used  due  diligence  in 
presenting  the  check  and  giving  notice  of  the  demand  and  non-pay- 
ment by  the  bank. 

544.  When   the   parties  all  reside  in  the  same  place,  the  holder 
should  present  the  check  on  the  day  it  is  received,  or  on  the  following 
day  ;  and  when  payable  at  a  different  place  from  that  in  which  it  is 
negotiated,  the  check  should  be  forwarded  by  mail  on  the  same  or  the 
next  succeeding  day  for   presentment.     It  has  been  said  that  greater 
diligence  is  necessary  in   presenting  checks  for  payment  than  is  re- 
quired in  relation  t6  bills  of  exchange,  but  I  can  see  no  good  reason 
for  it ;  what  will  be  due  diligence  in  one  case  will  be  due  diligence  in 
the  other. 

545.  In   an   action   by  a  second  indorser  of  a  check  against  the 
payee,  laches  on  the  part  of  the  first  indorser  will  not  be  presumed ; 
if  there  was  negligence  on  his  part,  it  must  be  affirmatively  shown  by 
the  defendant.     So,  where  the  second  indorser  has  put  the  check  in 
.circulation,  laches  will  not  be  presumed  in  a  subsequent  holder,  where 
the  bill  was  in  circulation  only  four  or  five  days  after  the  second  in- 
dorser parted  with  it  before  it  was  sent  for  presentment. 

546.  But,  where,  by  the  course  of  mail,  the  check  may  be  pre- 
sented in  three  days,  and  the  holder,  instead  of  putting  it  in  circula- 
tion, holds  it  in  his  possession  seven  or  eight  days,  he  is  chargeable 
with  want  of  due  diligence. 

547.  How  long  a  bill  or  check,  payable  on  demand  or  at  a  given 
number  of  days  after  sight  may  be  kept  in  circulation  before  present- 
ment without  discharging  an  indorser  is  an  unsettled  question.     Each 
case  must  be  determined  by  its  own  circumstances." 

548.  The  case  at  bar  is  one  where  a  second  indorsee  of  a  check  on 
receiving  it  put  it  in  circulation,  and  not  more  than  four  or  five  days 
elapsed  thereafter  before  it  was  sent  for  presentment,  and  the  court 
held,  in  an  action  by  him  against  the  payee,  that  he  was  not  charge- 
able with  laches,  there  having  been  no  evidence  in  the  case  but  that 


OF   STANDARD   DECISIONS.  79 

the   indorsee  became  the  holder  of  the  check  on  the  day  it  was  nego- 
tiated by  the  payee. 

549.  It  will  be  seen  that  the  court  drew  a  distinction  between  a 
holder  who  keeps  the  check  in  his  possession  for  several  days  and  one 
who  puts  it  in  circulation.  In  the  latter  case  much  more  time  is  per- 
mitted to  elapse  before  presentment  without  incurring  the  danger  of 
laches. 


LIABILITIES  OF  BANKS. 

550.  A  contract  to  perform  the  duties  of  an  office  is  implied  by 
the  party  accepting.     Commonwealth  v.  Evans,  74  Penn.  St.  124. 

551.  In  discussing  the  rights  of  banks,  it  will  be  remembered  that 
the  principle  was  stated   that  the  bank  received  its  powers  from  the 
statute  law,  direct  from  the  Legislature,  and  as  its  business  is  a  pecu- 
liar one,  that  it  had  no  power  to  do  any  act,  unless  the  power  is  ex- 
pressly given  or  is  necessary  to  the  proper  exercise  of  the  powers  so 
expressly  given. 

552.  In  making  this  statement,  it  must  also  be  remembered  that 
our  meaning  is,  that  no  power  is  given  the  bank,  either  directly  or  by 
implication,  to  do  any  other  act  than  what  falls  within  the  limits  of 
business  usually  undertaken  by  banks ;  our  meaning  is  not  that  the 
bank  can  do  no  other  act  for  which  it  will  be  held  liable — for  there 
are  many  acts  it  may  do  and   many  contracts  it  may  enter  into  for 
which  it  will  be  liable  ;  for  instance  : 

553.  The  charter  of  a  bank  may  limit  its  issue  of  bills,  and  yet 
the  bank  may  put  forth  a  larger  issue  than  authorized  and  be  bound 
for  the  excessive  issue,  in  the  hands  of  a  bona  fide  holder  ;  also,  there 
may  be  no  power  given  a  bank  to  engage  in  any  other  than  a  strictly 
discount  business,  yet  should  it  receive  paper  for  collection,  which  is 
prohibited  by  its  charter,  it  makes  itself  liable  to  its  customer,  who 
was  not  aware  of  the  limitation  of  its  power. 

554.  Generally,  a  bank  cannot  become  surety  for  a  person ;  this 
power  is  not  given  in  the  charter  and  is  not  inherent  to  the  powers 
of  a  bank;  yet  should   it  become  an  accommodation  indorser  and  the 
paper  comes  to  the  hands  of  an  innocent  holder  for  value,  although  as 
a  matter  of  fact  the  indorsement  is  illegal,  yet  the  bank  is  liable  as 
such  indorser.     Morse,  p.  10. 

555.  But,  where  the  holder  had  actual  notice  that  the  indorse- 
ment was  for  accommodation,  or  where  there  is  anything  in  the  ap- 
pearance of  the  paper  that  will  show  it  was  for  accommodation,  then 
it  is  incumbent  on  the  holder  to  prove  that  the  bank  received  value  for 
the  indorsement,  or  that  the  directors  knew  and  ratified  the  act  of  the 
officer  making  the  accommodation  indorsement.      West  St.  Louis  Sav- 
ings'1 Bank  v.  Shawnee  County  Bank,  U.  S.  Circuit  Court,  District  of 
Kansas  ;  reported  in  Central  Law  Journal,  January,  1875. 

556.  And,  as  it  will  be  shown  in  the  proper  place,  the  bank  is 
liable  for  all  acts  done  by  its  directors  and  officers  within  the  limits  of 
their  respective  duties ;  yet,  should  these  officers  exceed  their  author- 
ity, in  entering  into  a  contract,  to  the  extent  as  to  make  an  illegal  con- 


80  MONROE'S  DIGEST 

tract,  yet  the  contract  can  be  enforced  against  the  bank  by  the  party 
making  it,  should  the  bank  do  any  act  ratifying  it. 

55*7.  Although  the  party  could  not  recover  on  the  paper  itselfr 
which  is  evidence  of  the  contract,  yet  he  may  on  the  original  con- 
sideration. As  where  the  cashier  borrows  money  without  authority 
and  gives  a  note  of  the  corporation  for  it,  the  contract  itself  may  be 
illegal;  the  note  made  without  authority,  is  illegal,  but  the  creditor 
can  hold  the  bank  for  the  money  had  and  received,  if  the  bank  actually 
used  the  money  and  had  a  right  to  borrow,  in  any  way,  money  for  its 
use.  Utica  Insurance  Co.  v.  Scott,  19  Johns,  1 ;  Curtis  v.  Leavitt,  15 
N.  Y.  9 ;  Boisgerard  v.  N.  Y.  Banking  Co.,  2  Sandf.  ch.  23. 

558.  Much  more  is  the  bank  liable  where  paper  is  made  by  any 
of  its  officers,  not  in  the  formal  way  authorized,  and  it  is  negotiable 
and  comes  into  the  hands  of  a  bonafide  holder,  without  notice,  unless 
the  charter  absolutely  forbids  the   bank  to  issue  such  paper.     Morse, 
p.  13. 

559.  The  directors  are  the  only  persons  authorized  to  make  a  con- 
tract that  will  be  binding  upon  a  bank,  with  a  few  exceptions,  to  be 
hereafter  noticed.     But  the  liability  of  the  bank  is  not  fixed  until  the 
contract  is  signed  by  the  president  or  cashier,  or  both,  as  they  only 
have  power  to  bind  the  bank  with  their  signatures,  and  are  not  author- 
ized to  sign  any  contract  not  previously  made  by  the  directors,  as  the 
directors  only  can  borrow  money  to  increase  the  capital  of  the  bank, 
and  they  only  can  buy  and  sell  real  estate  (if  the  purchasing  and  sell- 
ing is  in  the  province  of  the  bank  at  all).     But  the  contract  in  either 
case  is  not  perfected  until  the  proper  officers  sign  the  same,  and  not 
until  then  does  the  liability  of  the  bank  begin. 

560.  And    all    contracts  signed  by  the    president    and   cashier, 
unless  in  pursuance  of  instructions  from  the  directors,  will  be  invalid 
in  hands  of  any  party  knowing  the  irregularity.     Gillet  v.  Campbell, 
1  Den.  520. 

561.  But,  should  a  contract  or  negotiable  paper,  duly  executed  by 
the  president  and  cashier,  who  had  no  authority  to  execute  the  same, 
come  into  the  hands  of  an  innocent  holder  for  value,  the  bank  would 
be  bound.     And  the  cashier  can  bind  the  bank  by  his  check  or  other 
paper  given  for  money  to  meet  the  ordinary  exigencies  of  the  bank  ; 
but  not  to  borrow  money  to  increase  the  captial  of  the  bank.     Mer- 
chants' Bank  v.  Nat.  Bank,  10  Wallace,  604. 

562.  All  banks  are  liable,  in  the  same  way  as  individuals,  for  a 
violation  of  the  usury  laws  ;  and  the  contract  into  which  usury  enters 
is  governed  by  the  laws  of  the  State  where  made  or  to  be  performed  ; 
and  the  bank  is  liable  to  all  the  penalties  imposed  for  taking  or  con- 
tracting for  usury,  either  by  the  State  or  United  States  statute. 

563.  In  some  states  the  contract  is  absolutely  void ;  in  others  it 
prevents  the  recovery  of  all  interests,  while  in  others,  of  only  the  ex- 
cess of  legal  interest.     Besides,  the  bank  may  be  liable  for  the  forfeit- 
ure of  its  charter.     But  should  the  bank  attempt  to  enforce  such  a 
contract,  the  debtor  cannot  at  all  times  escape  the  payment  on  the 
ground  that  the  contract  is  illegal.     He  can  only  claim  the  benefit  of 
the  law  against  usury,  according  to  the  law  of  the  place  where  the 
contract  was  made.     Bank  of  the   United  States  v.  Waggner,  9  Peters, 
399. 


OF   STANDAKD   DECISIONS.  81 

564.  As  before  said,  where  the  taking  of  a  greater  than  legal  rate 
of  interest  is  done  by  the  bank,  in  the  shape  of  discounts,  it  is  not 
usury,  strictly  speaking.     One  of  the  direct  or  inherent  powers  of  a 
bank  is  that  of  discounting  paper  ;  and  discount  means  to  reserve  in- 
terest in  advance.     So,  where  the  bank  in  this  way  gets  more  than  the 
legal  interest,  it  is  not  liable  to  the  penalty  of  usury.     Morse,  p.  16. 

565.  But,  if  the  bank  should  demand  and  receive  an  excessive  rate 
of  discount  for  the  purpose  of  avoiding  the  usury  laws,  it  would  never- 
theless be  liable  to  all  the  penalties  for  taking  usury.    Ibid. 

566.  Where  one  of  the  penalties  imposed  by  the  statute  or  law  of 
the   land    upon   the   banks   for  taking  usuiy,  is  the  forfeiture  of  its 
charter,  this  can  be  enforced  only  at  the  instance  of  the  State,  and 
only  when  the  bank  willfully  demands  or  receives  usury. 

567.  Where  a  cashier  or  any  other  officer  of  the  bank  does  the 
illegal  act  of  taking  usurj7,  the  bank  is  not  liable  to  a  forfeiture  of  its 
charter  for  this  act,  unless  it  was  done  with  the  knowledge  of  the  di- 
rectors, or  when  subsequently  sanctioned  by  them,  or  unless  the  di- 
rectors failed  to  repudiate  the  act  so  soon  as  it  came  to  their  knowl- 
edge. 

568.  The  presumption  of  law  is,  that   the  corporation  does   not 
authorize  its  officers  to  do  an  illegal  act,  and  when  either  one  of  them 
does  an  illegal  act,  and  it  is  not  shown  that  the  directors  knew  or 
sanctioned  it,  the  bank  is  not  liable  for  the  penalty.     But  where  the 
illegal  acts  are  done  frequently,  or  even  habitually,  the  presumption 
will  then  arise  that  they  were  done  with  the  knowledge  of  the  direct- 
ors.    Clark  v.  Metropolitan  Bank,  4  Duer.  241. 

569.  Any  violation  of  the  State  law  or  provision  of  its  charter 
knowingly  committed  by  the  directors  will  subject  the  bank  to  a  for- 
feiture of  its  charter.     And  the  directors  of  a  bank,  unlike  the  direct- 
ors of  any  other  corporation,  are  held  to  a  strict  accountability  for 
watching  the  acts  of  its  officers — and  may  even  be  held  individually 
responsible  where  the  officer  is  guilty  of  illegal  acts  which  they  might 
by   proper    diligence   have   discovered  and   prevented.     Agricultural 
Bank  v.  Robinson,  24   Maine,  274  ;  United  Society  of  Shakers  v.  Un- 
derwood, Ky.  Court  of  Appeals,  1874. 

570.  Mr.  Morse,  page  22,  says  :  "  Generally  it  may  be  said  that 
any  violation,  willfully  or  knowingly  committed,  of  any  material  di- 
rection or  provision  embodied  in  the  law  of  the  corporate  existence ; 
or  any  fraudulent  or  dishonest  act ;  or  the  occurrence  of  anything 
which  shows  that  for  any  reason,  whether  of  fault  or  misfortune,  the 
bank  is  incompetent  in  any  respect  to  perform  safely  and  usefully  any 
of  its  functions,  will  furnish  sufficient  ground  for  taking  away  its 
corporate  franchise."  State  Bank  v.  State,  1  Blackf.  270. 

571.  The  only  forfeiture  declared  by  the  thirtieth  section  of  the 
act  of  June  3d,  1864  (13  Stat.  99),  is  of  the  entire  interest  which  the 
note,  bill,  or  other  evidence  of  debt,  carries  with  it,  or  which  has  been 
agreed  to  be  paid  thereon,  when  the  rate  knowingly  received,  reserved, 
or  charged  by  a  national  bank  is  in  excess  of  that  allowed  by  that 
section  ;  and  no  loss  of  the  entire  debt  is  incurred  by  such  bank,  as  a 
penalty  or  otherwise,  by  reason  of  the  provisions  of  the  usury  law  of 
the  state.  Farmers'  &  Mechanics'  Nat.  Bank  v.  Dearing,  (1  Otto)f 
U.  S.  S.  C.  91,  29. 

6 


82  MONKOE'S  DIGEST 

572.  National  banks  organized  under  the  act  are  the  instruments 
designed  to  be  used  to  aid  the  government  in  the  administration  of 
an  important  branch  of  the  public  service,  and  Congress,  which  is  the 
sole  judge  of  the  necessity  for  their  creation,  having  brought  them 
into  existence,  the  States  can  exercise  no  control  over  them,  nor  in  any 
wise  affect  their  operation,  except  so  far  as  it  may  see  proper  to  per- 
mit.    Ibid. 

573.  So,  where  the  charter  of  a  bank  or  the  general  law  of  the 
State  prohibits  it  from  making  a  loan  to  its  directors,  or  loaning  them 
beyond  a  given  amount,  and  the  bank  violates  either  the  charter  or 
State  law,  whether  directly  or  indirectly,  as  where  the  loan  is  made  to 
an  outside  party,  yet  in  fact  for  the  use  of  a  director,  the  bank  is  liable 
to   forfeit   its  charter.     It    is  no  excuse  that  the  directors  were  not 
aware  of  the  law  or  of  the  fact  that  this  director  had  already  borrowed 
all  he  could  under  the  law.     They  are  imperatively  bound  to  know  it. 
Bank  Commissioner  v.  Bank  of  Buffalo,  6  Paige,  N.  Y.  497. 

574.  When  the  relation  of  debtor  and  creditor  is  once  established 
between  a  bank  and  its  customer,  by  the  opening  of  an  account  of  de- 
posit, the  customer  has  the  right  to  withdraw  from  the  bank  such 
funds  at  any  time,  and  the  bank  is  bound  to  honor  all  his  checks  until 
his  balance  is  absorbed,  and  it  is  liable  for  all  damages  in  case  it  should 
refuse  to  pay  his  checks. 

575.  But  while  the  bank,  like  an  individual,  is  bound  to  observe 
the  laws  of  the  land  in  making  its  contracts,  it  also,  like  an  individual, 
can  make  use  of  and  plead  any  legal  defences  it  may  have  to  an  action 
brought  against  it  by  its  customers.     For  instance,  the  statute  of  limi- 
tations will  run  in  favor  of  the  bank,  like  any  other  debt  at  common 
law.     And  it  is  an  important  question  as  to  when  the  statute  of  limita- 
tion will  begin  in  favor  of  the  bank.    In  3  Pick.,  96,  and  16  Mee.  &  W., 
321,   Mr.   Morse   says,   p.    31  :     It  was   held  that  the  statute  began 
"  from  the  date  of  the  last  balancing  of  accounts,  as  in  the  depositor's 
bank  book,  if  no  subsequent  transaction  should  take  place  between  the 
depositor  and  bank."     But  he  does  not  think  this  rule  to  be  "  founded 
either  in  reason  or  sound  law,"  and  says  the  proper  date  for  the  statute 
to  run  is  after  a  demand  made  by  the  depositor  for  the  balance  to  his 
credit,  or  rather,  after  a  refusal  for  any  amount  less  than  the  balance, 
upon  a  proper  demand  being  made  by  the  depositor,  and  reasons  thus  : 

576.  The  longer  funds  remain  in  the  bank,  the  greater  will  be  the 
gain  of  the  bank.     "  The  banking  business  finds  a  great  portion  of  its 
profits — in  many  cases  all  its  profits — in  the  use  of  the  funds  of  other 
persons,"  its  depositors.     "  If  it  has  been  allowed  to  reap  extraordi- 
nary gains  from  the  funds  of  one  man,  because  it  has  been  allowed  to 
retain  them  undisturbed  for  the  unwonted  space  of  eight,  ten  or  twelve 
years,  this  would  seem  to  be  no  just  cause  for  allowing  it  to  add  the 
still   more  enormous  gain  of  a  complete  appropriation  of  the  whole 
sum."   Morse,  p.  31. 

577.  "  We  have  already  seen  that  it  is  a  contract  specially  modi- 
fied by  the  clear  legal  understanding  that  the  money  shall  be  forth- 
coming to  meet  the  order  of  the  creditor,  whenever  that  order  shall  be 
properly  presented  for  payment.     It  follows,  therefore,  that  this  de- 
mand for  payment  is  an  integral  and  essential  part  of  the  undertaking 
— it  may  be  said,  even  of  the  debt  itself.     In  short,  the  agreement  of 


OF   STANDARD   DECISIONS.  83 

the  bank  with  the  depositor  is  only  to  pay  on  demand  ;  accordingly, 
until  there  has  been  such  demand,  and  a  refusal  thereto,  or  until  some 
act  of  the  bank  has  dispensed  .with  such  demand  and  refusal,  the 
statute  cannot  begin  to  run."  Morse,  p.  32,  citing  authorities. 

578.  On  the  same  principle,  a  bank  cannot  be  sued  by  its  depositor 
until  a  demand,  for  the  contract  was  to  pay  on  demand,  and  until  a 
<lemand  no  violation  of  the  contract  takes  place  and  no  right  of  action 
accrues.     Girard  Bank  v.  Bank  of  Penn  Township,  39  Penn.  St.  92. 

579.  In  addition  to  the  general  deposits  of  its  customers — as  to 
which   the  bank's  duties  and   liabilities  have  been  mentioned — banks 
•usually  receive  money  and  other  valuables  as  special  deposits,  and,  as 
to  this  kind  of  deposit,  the  liability  of  the  bank  also  attaches.     Where 
it  receives  the  special  deposit,  and  agrees  to  take  it  without  pay,  it 
becomes  a  naked  bailment,  and  the  bank  is  held  to  no  further  super- 
vision over  it  than  over  its  own  valuables   of  like  kind,  and  is  not 
liable,  even  if  its  own  officers  steal  it. 

580.  But,  if  any  special  contract  is  made  by  which  the  bank  is  to 
receive  compensation  for  keeping  the  deposit,  or  to  derive  any  benefit 
therefrom,  then  its  responsibility  is  increased,  and  it  would  be  liable  if 
stolen  by  one  of  its  officers.     Morse,  55  and  56. 

581.  If  money  be  deposited — current  money  of  the  country — it 
would  be  a  general  deposit,  unless   specially  agreed  to  be  otherwise, 
and  would  go  to  the  general  account  of  the  depositor. 

582.  On  the  contrary,  if  gold  or  foreign  coin  be  deposited,  and  no 
special  contract  is  made,  the  presumption  would  be  that  it  was  placed 
in  the  bank  as  a  special  deposit,  and  the  bank  would  only  be  liable  in 
case  it  failed  to  return  the  same  in  specie  ;  the  ownership  would  remain 
in  the  depositor,  and  the  bank  would  not  be  liable  in  case  of  loss,  unless 
from  its  own  gross  neglect. 

583.  And  where — as  at  the  present  time,  gold  coin  has  ceased  to 
be  the  current  money  of  the  country — a  deposit  is  made  in  gold  coin 
of  the  United  States,  where  it  is  used  as  a  commodity,  like  any  other 
•chattel,  it  would  seem  a  deposit  made  in  gold  coin,  in  the  absence  of 
a  special  contract  showing  the  contrary  intention,  would  be  a  special 
deposit,  and  the  bank  would  be  bound  to  return  it  in  specie,  and  could 
not  discharge  itself  by  returning  or  tendering  a  similar  amount  on  its 
face  of  legal  tender  notes,  but  would  be  liable  for  the  market  value  of 
the  gold  at  the  time  of  the  conversion.     Same,  p.  58  ;  also,  Sanford  v. 
Hat/s,  52  Penn.  St.  26. 

584.  So,  where  a  special  deposit  is  made,  whether  of  a  bag  of  gold, 
of  foreign  or  uncurrent  bank  notes,  or  current  money  in  a  sealed  box, 
the  depositor  remains  the  owner,  and  the  bank  becomes  the  bailee,' and 
on  its    insolvency  the  owner    has  a  right  to   the  specific    property, 
and  it  does  not  go  to  the  general  creditors  of  the  bank.     Foster  v.  Essex 
Bank,  17  Mass.  479. 

585.  Of  course,  this  is  only  where  it  remains  in  a  separate  pack- 
age.    Should  the  bank  convert  the  gold  or  the  contents  of  any  other 
package,  and  it  should  fail,  the  package  could  not  be  recovered  in 
specie,  and  then  the  depositor  would  have  to  take  the  position  of  a  gen- 
eral creditor  of  the  bank.     In  such  a  case,  however,  the  directors  might 
be  individually  liable  for  the  conversion.     United  Society  of  Shakers 
v.  Underwood,  Court  of  Appeal  of  Kentucky,  1874. 


84  MONROE'S  DIGEST 

586.  And  it  will  be  observed  from  the  above,  that  the  responsi- 
bility of  a  bank  as  to  special  deposits  is  increased  according  to  the 
circumstances  under  which  it  receives  the  deposit,  whether  it  received 
it  as  a  naked  bailment,  as  a  special  favor  to  the  depositor  for  which  it 
receives  no  benefit,  or  whether  as  a  bailment  for  which  it  does  receive 
a  benefit.  In  the  former  case,  as  has  been  observed,  the  liability  of  the 
bank  only  attaches  when  it  is  guiltj'  of  gross  negligence,  almost 
amounting  to  fraud.  It  is  only  necessary  for  the  bank  to  give  it  that 
care,  and  to  keep  it  like  it  does  its  own  valuables,  and  is  not  liable 
should  it  be  lost  or  stolen,  even  should  its  own  officers  steal  it. 

581.  But,  in  the  latter  case,  where  it  receives  a  benefit,  it  is  held 
to  a  stricter  responsibility,  and  is  bound  to  keep  it  with  great  care,  and 
is  liable  if  loss  occurs,  even  if  it  was  guilty  of  no  neglect,  even  should 
its  officers  steal  it  as  well  as  property  of  the  bank.  Wiley  v.  National 
Bank  of  Brattleboro,  Sup.  Ct.  Vt.,  Feb.  1875;  First  National  Bank 
of  Lyons  v.  Ocean  National  Bank,  N.  Y.  Court  of  Appeals,  Marchr 
1875. 

588.  Even   the   directors   may  be  held  liable  individually,  for  a- 
special  deposit  of  bonds,  left  with  cashier  on  deposit,  where  the  cashier 
disposed  of  the  bonds  and  placed  proceeds  to  the  credit  of  the  bankr 
and    the  directors  declared  a  dividend  after  knowledge  of  the    con- 
version, upon  the  insolvency  of  the  bank.      United  Society  of  Shakers 
v.  Underwood,  Ky.  Ct.  of  Appeals,  1874. 

589.  A  serious  question,  however,  lies  back  of  all  this ;  a  question, 
too,  in  which  the  most  recent  decisions  of  some  of  the  ablest  courts  are 
modifying  the  views  held  by  their  predecessors.     The  question  is  this : 
Is  receiving  special  deposits  within  the  legitimate  sphere  of  duty  of  a 
bank  ?     Can  any  officer,  or  even   the  board  of  directors,  render  the 
corporation  liable  for  the  loss  of  special  deposits?     The  two  cases- 
above  referred  to,  raise  this  question  in  the  most  serious  manner  ;  and 
while  they  both  decline  giving  it  a  definite  answer,  since  they  held 
the  bank  not  liable  on  other  grounds,  yet  they  leave  the  impression  on 
the  mind  that  they  would  have  answered  the  question  in  the  negative,, 
had  they  been  required  to  answer  it  at  all. 

590.  Of  course,  where  a  bank  receives  a  special  deposit,  as,  for  in- 
stance, bonds  as  collateral  security  for  a  loan,  these  principles  have  no- 
application  ;  there  the  bank  would   be  liable  to  the  full  extent  of  the 
loss.     The  doubt  extends  only  to  cases  where  a  deposit  is  left,  for  the 
sole  convenience  of  the  depositor,  and  the  bank  has  no  manner  of  in- 
terest in,  or  right  over,  the  deposit. 

591.  In  the  case  of  Wiley  v.  National  Bank  of  Brattleboro,  the 
court,  among  other  things  to  the  same  effect,  say  :     "  The  deposit  of 
these  bonds  cannot  be  distinguished  from  a  deposit  of  jewelry  or  other 
valuable  property,  and  was  a  special  transaction  not  within  the  ordinary 
course  and  business  of    banking,  or  necessarily  incident  to  it.      If 
authorized  (i.  e.,  if  the  cashier  or  president  was  authorized  by  $he 
directors),  it  added  greatly  to  the  risk  of  loss  to  the  shareholders  with- 
out adding  to  their  gain.     It  was  a  holding  out  of  greater  inducements- 
to  burglaiy  and  robbers  from  without,  and  might  prove  of  greater 
temptation  to  dishonesty  on  the  part  of  clerks  and  employees  within 
the  bank.     As  a  business,  it  could  not  have  been  undertaken  at  the 
risk  and  responsibility  of  the  corporation,  by  the  executive  officers,  or 


OF   STANDARD   DECISIONS.  85 

•without  the  special  authority  of  the  board  of  directors."  The  court  in 
this  case  reach  the  conclusion,  that  since  there  was  no  evidence  in  case 
that  the  particular  officer  who  received  this  deposit  was  authorized  to 
•do  so  by  the  directors,  nor  any  evidence  that  the  bank  had  been  in  the 
habit  of  receiving  such  deposits,  it  could  not  be  held  liable  for  their 
loss.  And  the  court  regard  it  as  a  very  serious  question,  back  of  all 
others,  whether  such  an  act  would  not  be  wholly  beyond  the  power  of 
the  directors. 

592.  In  the  case  of  Bank  of  Lyons  v.  Ocean  Bank,  the  court  go  even 
farther.     They  say  :     "  This  case  has  to  be  decided  more  upon  the  con- 
struction of  the  act  of  Congress,  considered  with  reference  to  settled 
principles  that  stand  about  the  subject,  than  upon  decided  cases.    And 
upon  that  act,  so  considered,  it  is  determined  here  that  the  keeping  of 
such  special  deposits,  to  keep  merely  for  the  accommodation  of  the  de- 
positor, is  not  within  the  authorized  business  of  such  banks."     And, 
while  in  this  case  too,  the  deposit  was  received  by  the  cashier,  and  the 
court  hold  that  he  could  not  bind  the  bank,  yet  the  language  is  so 
broad  and  so  pronounced  as  to  include  in  its  prohibition  the  directors 
as  well  as  executive  officers  of  the  bank. 

593.  A  bank  may  make  itself  liable  to  pay  a  check  by  certifying  it 
to  be  "  good,"  provided,  it  is  done  by  the  proper  officer — usually  the 
cashier ;  in  fact,  the  cashier  is  the  only  officer  who  can  legally  bind  a 
bank  by  certifying  a  check  good,  unless  the  bank  has  permitted  some 
other  officer  to  do  so  and  recognized  his  authority. 

594.  But,  should  the  president  or   any  other  officer  of  a  bank 
•certify  his  own  check  drawn  on   his  bank  as  good,  the  bank  is  not 
bound  to  pay  it,  as  such  a  check  shows  on  its  face  its  illegality,  and  no 
one  can  be  a  bona  fide  holder  of  it.     Claflin  v.  Farmers'  and  Citizens'* 
Bank,  25  N.  Y.  293. 

595.  But,  if  a  check  of  the  president  should  be  certified  by  the 
cashier  as  good,  the  bank  is  bound  to  pay  it ;  and  so  the  bank  is  bound 
for    all    checks    and    notes   made    payable   at   the   bank   where   the 
cashier  certifies  the  same  as  "  good."     Mead  v.  Merchants'  Bank,  25  N. 
Y.  143.     After  the  proper  officer  certifies  a  check  to  be  "  good,"  and  it 
is  not  presented  for  payment  for  some  time,  it  seems  the  bank  cannot 
charge  the  depositor  with  interest  only  from  the  time  of  actual  pa}'- 
ment.     Morse,  p.  62. 

596.  It  is  proper,  now,  to  consider  who  is  the  proper  officer  to 
certify  a  check  as  good,  so  as  to  hold  the  bank  liable. 

597.  The  Supreme  Court  of  the  United   States  say  that  it  is  the 
inherent  duty  of  the  cashier,  and  where  the  bank  should  claim  that  he 
•did  not  have  that  authority,  it  is  incumbent  on  the  bank  to  prove  that 
fact,  and  also  that  the  holder  of  the  check   knew  of  the  restriction 
placed  on  the  cashier's  inherent  power.      Merchants'  Bank  v.  State 
Bank,  10  Wallace,  647. 

598.  And,  while  the  cashier  is  the  officer  in  whom  exist  the  in- 
herent power  to  certify  checks,  yet  it  may  be  a  matter  of  usage  with 
the  different  banks,  and  they  may  be. bound  by  a  certificate  of  different 
officers — for  instance,  for  the  sake  of  convenience  a  bank  may  permit 
its  paying  teller  to  certify  checks  "  good,"  or  it  may  designate  any 
other  officer  to  do  this  act  as  a  departure  from  the  ordinary  usage,  and 
it  would  be  bound  by  the  certificates  of  such  officer.     Should  the  bank 


86  MONROE'S  DIGEST 

give  the  power  to  any  one  officer  and  another  should  exercise  it,  the 
bank  may  hold  this  officer  bound  in  case  any  damage  should  accrue  to 
the  bank.  Same  as  above  ;  Cooke  v.  State  Nat.  Bank,  5  N.  Y.  96. 

599.  But,  where  any  other   officer   than   the   cashier   certifies   a 
check,  before  the  holder  can  hold  the  bank  liabte,  it  is  incumbent  on 
him   to  show  a   usage  of  the  bank  to  permit  this  officer  to  certify 
checks,  or  that  the  specific  act  was  done  with  the  knowledge  of  the 
directors,  or  was  subsequently  ratified  by  them. 

600.  In  Pope  v.  Bank  of  Albion,  57  N.  Y.  126,  decided  January r 
1874,  the  court  held  that  a  check  certified  by  an  u  assistant  cashier  " 
was  not  binding  on  the  bank,  even  in  the  hands  of  an  innocent  holder 
for  value,  on  the  ground  that  it  was  done  by  a  "  subordinate  officer," 
and  no  usage  was  proven  that  the   assistant  cashier  was  in  the  habit 
of  certifying  checks.      The   facts  showed  that  the  certifying   was   a 
fraud  by  the  officer,  as  the  drawer  had  no  funds.     Even  should  the 
drawer  have  no  funds,  the  court  would  have  held  differently,  had  the 
certificate  been  made  by  the  assistant  cashier  or  some  other  officer  who- 
it  was  shown  was  in  the  habit  of  certifying  checks. 

601.  And,  it  is  very  questionable  whether  the  above  decision  will 
be  followed  by  courts  of  other  States.     The  opinion  was  given  by  a 
divided  court,  and  it  is  difficult  to  see  how  a  stranger  to  the  usage  of  a 
bank  can  be  held  to  know  what  particular  officer  of  the  bank  possesses 
the  right  or  authority  from  the  bank  to  certify  checks,  when,  by  any 
reasonable  interpretation,  the  act  may  be  said  to  fall  within  the  line  of* 
his  duties,  or  may  include  the  act  in  question.     It  seems  singular  that 
the  "  assistant   cashier  "  should  be  held  as  a  matter  of  law,  a  "  subordi- 
nate officer,"  one  occupying  a  lower  position  than  the  teller,  when  he  is 
at  the  bank  in   the  exercise  of   full   power  to  act  for  the  bank.     It 
seems  strange  that  all  parties  should  know  he  had  no  authority  to  cer- 
tify a  check  "  good."     It  would  seem  the  better  doctrine  would  be  to 
hold  the  bank  bound,  and  let  the  bank  look  to  the  "  assistant  cashier  'r 
for  the  damage  it  suffered. 

602.  The  above  decision  is  in  direct  conflict  with,  and  overrules 
the  case  in  59  Barbour,  226,  and  it  may  be  subjected  to  the  above  criti- 
cism, and  it  seems  that  the  principle  laid  down  in  the  latter  case  is  more 
in  harmon3r  with  the  enunciations  of  the  decisions  of  the  leading  courts 
of  other  states,  which  hold  the  bank  responsible  for  all  the  acts  of  its 
officers  when  performed  in  the  line  of  his  duties,  or  when  a  stranger  to 
the  usage  of  a  bank  takes  a  check  certified  by  an  officer  who  seemingly 
has  the  power  so  to  certify.     It  is  certainly  quite  a  general  custom 
among  banks  for  the  paying  teller  to  certify  checks,  and  it  is  difficult 
to  understand  how,  as  a  matter  of  law,  the  assistant  cashier  occupies  a 
more  "  subordinate  position  "  than  the  paying  teller. 

603.  Just  how  long  the  holder  of  a  certified  check  can  retain  it, 
and  yet  the  bank  remain  liable  thereon,  has  been  a  question  much 
mooted,   but   seems    now  to  be  settled  on  principle,  which  is  this  : 
Whenever    the   depositor   draws  his  check  against  a  portion  of   his 
balance,  this  operates  as  an  inchoate  assignment  by  the  drawer  of  the 
specified  amount  of  his  funds  to  the  payee  or  holder  of  the  check,  and 
•when  it   is  presented  to  the  bank  it  becomes  a  notification  of  the  bank 
of  the  assignment,  and  as  soon  as  the  bank  certifies  it  good,  the  as- 
signment becomes  complete,  and  a  new  obligation  is  undertaken  on  the- 


OF   STANDARD  DECISIONS.  87 

part  of  the  bank — it  promises  to  pay  the  fund  designated  in  the  check 
to  the  holder  and  not  to  the  drawer,  and  it  is  the  duty  of  the  bank  to 
retain  sufficient  funds  of  the  drawer  to  pay  it.  Should  it  happen  that 
the  depositor  withdraws  all  his  funds,  and  the  bank  fail  to  retain  suf- 
ficient funds  to  pay  the  certified  check,  nevertheless,  it  is  liable  to  the 
holder  or  his  indorsee.  And  there  being  a  contract  thus  entered  into 
on  the  part  of  the  bank  and  the  holder  of  the  certified  check,  he  has  all 
the  period  of  time  until  the  statute  of  limitation  expires  within  which 
to  present  it.  No  length  of  time  within  the  statute  would  be  con- 
strued as  laches  on  the  part  of  the  holder.  A  promise  to  pay  the 
check  on  demand  has  been  entered  into  by  the  bank,  and  on  a  sufficient 
consideration.  When  the  statute  begins  to  run  may  also  become  im- 
portant. If,  by  the  certification  of  the  check  the  relation  of  banker 
and  depositor  is  created,  and  the  holder  can  draw  against  the  funds  at 
will,  the  statute  will  run  from  the  day  the  certified  check  should  be 
presented  by  him  for  payment.  Morse  on  Banking,  p.  283,  etc. ; 
Girard  Bank  v.  Bank  of  Penn  Township,  39  Penn.  St.  152. 

604.  As  the  bank  derives  a  benefit  from  the  monej'  remaining  in 
its  hands,  it  is  reasonable  to  assume  that  the  check  would  stand  as  a 
deposit  and  being  so,  that  the  holder  thereof  would  be  entitled  to  all 
the  rights  of  a  depositor. 

605.  In  a  recent  case  decided  in  New  York,  Januarj'.  1875  (Per- 
som  v.   Com.  Exchange  Bank,  5  N.  Y.  Supreme  Court  Reports),  the 
facts  were,  that  a  check  was  drawn  and  certified  good  in  May,  1862, 
and  held  by  the  drawer  or  his  wife  until  February,  1869,  when  it  was 
indorsed  over  to  another  party.     The  drawer   had,  in  the  meantime, 
drawn  out  all  his  funds.    The  court  held  the  indorsee  could  not  recover 
from  the  bank,  on  the  ground  he  was  not  a  purchaser  for  value.     Had 
he  been  a  purchaser  for  value,  and  received  the  check  at  or  about  the 
time  it  was  certified,  or  at  any  other  time,  the  bank  would  have  been 
held  liable,  notwithstanding  the  lapse  of  time,  as  the  statute  of  limita- 
tion had  not  expired.     The  bank  in  this  case  had  neglected  to  charge 
the  drawer  with  the  amount  of  the  check. 

606.  The  usual  mode  to  certify  a  check  is  for  the  proper  officer  of 
the  bank  to  write  across  it  "  good,"  with  the  date  of  its  presentation, 
and  his  name,  with  his  official   character  ;    any  other  word  written 
across  it,  showing  the  intention  of  the  bank  to  certify  it  good,  would 
be  sufficient  to  bind  the  bank.     By  the  common  law  in  England,  the 
acceptance  could  be  done  verbally,  and,  in  the  absence  of  a  statute 
preventing  it  or  an  exclusive  usage  to  accept  it  in  writing,  a  verbal  ac- 
ceptance would  bind  the  bank.     In  this  country,  the  usual  way,  and 
safest,  is  to  accept  it  in  writing.     Merchants'  Bank  v.  State  Bank,  \  0 
Wall.  604. 

607.  A  bank  might  make  itself  liable  as  having  accepted  a  check 
by  detaining  it  an  unusual  length  of  time  after  it  is  presented.     Morse. 
289. 

608.  The  rule  above  enunciated,  it  must  be  remembered,  is  that, 
to  hold  a  bank  liable,  the  certification  must  be  made  by  the  proper 
officer  whose  duty  it  is  to  certify  Checks,  or  who  is  permitted  by  the 
bank  to  do  so,  or  who  is  held  out  by  the  bank  as  a  person  authorized 
to  certify.     And,  in  the  case  just  cited,  as  also  in  some  other  recent 
cases,  the  court  intimate  very  strongly  the  opinion  that  a  verbal  certi- 


$8  MONROE'S  DIGEST 

fication,  when  clearly  proven,  is  equally  binding  with  a  written  certifi- 
cation. 

609.  There  is  no  doubt  upon  the  question  that  where  a  check  is 
certified  by  a  bank — the  transaction  being  bona  fide — the  bank  becomes 
liable  for  the  amount  to  the  holder.     Another  question,  however,  aris- 
ing out  of  this  is  far  more  complicated,  and  not  so  well  settled  by  ad- 
judications; it  is  this  :  When  a  check  is  so  certified  by  the  bank,  and 
the  bank  fails  before  paying  the  check,  is  the  drawer  of  the  check  dis- 
charged at  all  events,  or  can  he  be  still  held  liable  on  protesting  the 
check  ?     The   circumstances  attending  such  a  transaction  will,  to  a 
large  extent,  determine  the  rights  of  the  parties  ;  and  these  circum- 
stances can  be  conveniently  divided  into  three  classes  : 

610.  1.  Where  the  holder  of  the  check,  for  his  own  convenience,  ob- 
tains from  the  drawee-bank  a  certification  of  the  check,  preferring  this 
mode  of  payment  to  the  money. 

611.  2.  Where,  by  agreement  of  the  parties,  a  certified  check  is 
taken  and  regarded  as  payment. 

612.  3.  Where  the  drawer,  without  explanation,  or  agreement  of  any 
kind,  gives  to  the  payee  a  certified  check,  and  the  holder  receives  it 
without  agreement  or  comment. 

613.  The  first  class  of  cases  was  settled  in  First  National  Bank  of 
Jersey    City  v.   Leach,  52  N.   Y.   (Court  of  Appeals),  350  ;  there  a 
check,  due  December  12th,  was  presented  at  noon  that  dajr  to  the 
drawee-bank,  and  by  it  certified  good  ;  it  would  have  been  paid  if  the 
cash  had  been  then  demanded ;  later  in  the  day  the  bank  went  into 
liquidation,  and  the  check  was,  the  same  day,  presented  for  payment, 
and  duly  protested.     The  court  held  the  drawer  was  not  liable.     The 
court  say  :     "The  theory  of  the  law  is,  that  when  a  check  is  certified, 
the  amount  thereof  is  then  charged  to  the  drawer.     Every  well-regu- 
lated bank  adopts  this  practice  to  protect  itself.    It  follows  that,  after  a 
•check  is  certified,  the  drawer  of  the  check  cannot  draw  out  the  funds 
then  in  the  bank  necessary  to  meet  his  certified  check.     That  money  is 
no  longer  his." 

614.  The  court  then  distinguish  between  accepting  a  time-draft 
and  certifying  a  due-check  to  be  good,  saying  that  the  former  does  not 
and  the  latter  does  operate  as  a  payment ;  for  the  reason  that,  in  the 
case  of  the  time-draft,  the  money  is  not  due  and  the  holder  is  obliged 
to  wait  till   maturity  ;  while  the  certifying  of  a  check  is  a  declaration 
by  the  bank  that  the  money  is  on   hand  to  be  paid,  if  the  holder  so 
•elect,  and  that  it  is  his  own  fault  if  he  do  not  receive  the  money,  and 
that  he  cannot  throw  the  risk  on  the  drawee.     There  can  be  no  possible 
•doubt  of  the  soundness  of  these  views. 

615.  In  the  second  case,  it  is  obvious  that  the  check,  like  any 
other  piece  of  property,  will  constitute  a  payment  when  the  parties  so 
;agree.     In    fact,  the  reasoning  of  the  last  case  is  nearly  equally  ap- 
plicable in  this. 

616.  In  the  third  case,  the  question  is  more  difficult,  and,  so  far  as 
-we   have  been  able  to  discover,  has  not  been  directly  decided.     On 
principle,  however,  the  answer  seems  to  be :  that  where  I  receive  a 
certified  check,  in   payment  of  a  debt  or  otherwise,  from  the  drawer, 
and  no  agreement  is  made,  it  does  not  operate  as  a  payment,  so  far  as 
the  drawer  is  concerned,  unless  it  is  actually  paid  by  the  bank. 


OF   STANDARD   DECISIONS.  89 

617.  What  is  the  certifying  of  a  check  given  under  those  circum- 
stances, in  principle,  but  the  giving  of  an  indorsed  piece  of  paper  ?   It  is, in 
principle,  the  promise  of  the  drawer  to  pay  a  given  amount ;  and  contains, 
further,  the  promise  or  guarantee  of  the  drawee-bank  that  the  promise 
is  or  shall  be  made  good.     And  where  a  piece  of  paper  is  given  me,  on 
which  a  guarantor,  not  of  my  choosing,  is  insolvent,  on  what  principle 
can  it  be  claimed  that  the  mere  fact  of  my  having  taken  such  a  piece 
of  paper  shall  discharge  the  original  promisor  ? 

618.  None  of  the  reasoning  in  the  former  case  is  applicable  to  cir- 
cumstances like  the  present ;  there  is  no  choosing  of  the  bank  by  me 
for  my  convenience.     I  do  not  ask  the  bank  to  transfer  the  amount  of 
the  check  to  my  credit ;  there  is  no  volition  on  my  part  in  this  case. 
Very  likely,  the  holder  might  be  held  to  a  good  deal  of  diligence  in 
presenting  the  check  for  payment ;  but  probably  to  no  greater  degree 
than  in  the  case  of  an  uncertified  check. 

619.  Would   it  not  seem,  then,  that  a  certified  check  is  not  any 
more  than  one  not  certified,  under  these  circumstances,  a  payment  until 
it  is  actually  paid — and  that  where  the  same  is  promptly  presented  for 
payment,  and  protested,  the  drawer  can  be  held  ? 

620.  Of  course,  in  those  States  where  taking  negotiable  notes  is 
held  priina  facie,  or  even  absolutely  a  payment,  this  rule,  probably, 
•would  not  apply. 

621.  An  assignment  of  a  fund  to  his  credit,  or  a  portion  thereof, 
may    be  made  by  a  depositor  that  will  bind  the  bank,  although  not 
done  in  writing — as,  where  he  assigns  verbally  to  a  certain  party  so 
much  money,  and  the  party  notifies  the  bank  of  the  assignment  and 
the  bank  agrees  to  pay  the  same.     In  Foss  v.  Lowell  Savings1  Bank, 
111  Mass.;  decided  1873. 

622.  In  this  case,  a  depositor  in  a  savings'  bank  delivered  to  a 
party  his  deposit-book,  with  directions  for  the  bank  to  pay  the  balance 
of  the  deposit   to  the  party,  and  he  then  gave  notice  of  the  assignment 
to  the  bank.     Subsequently,  the  depositor  died,  and  before  the  money 
was  drawn  by  the  assignee  ;  and  the  court  held  that  the  bank  became 
liable  to  the  assignee,  and  if  it  should  pay  the  administrator  of  the  de- 
positor the  amount,  still  it  would  be  liable  to  the  assignee. 

623.  But,  if  the  notice  of  the   assignment  had  not  been  given  to 
the  bank  until  after  the  death  of  the  depositor,  then  the  administrator 
could  alone  recover.     It  seems,  the  notice  to  the  bank  while  the  de- 
positor is  alive,  is  necessary  to  hold  the  bank  liable  to  the  assignee. 
Beakv.  Beak,  13  English  Law  Reports,  480;  decided  1872. 

624.  The   same   principle,   as  above    stated,   prevails  where  the 
drawer  of  a  check  dies  or  becomes  a  bankrupt  before  the  check  is  pre- 
sented, and  the  bank  has  notice  of  the  death  or   bankruptcy,   it    is 
bound  not  to  pay  the  check,  as  the  death  or  bankruptcy  annuls  the 
check. 

625.  Where  a  note,  made  payable  at  a  bank,  is  certified  as  u  good," 
if  done  by   the  proper  officer — and  it  seems  the  teller  can  do  this — 
whether  the  certificate  is  written  on  the  note  or  on  separate  paper,  or  is 
verbal,  it  will  be  binding  on  the  bank  whose  officer  so  certifies,  if,  on 
the  strength  of  such  a  certificate,  the  bank  holding  the  paper  for  col- 
lection, and  who  presented   it,  failed  to  notify  the  indorsers.      Irving 
Bank  v.   Wetherald,36  N.  Y.  335. 


90  MONROE'S  DIGEST 

626.  But,  where  the  bank  who  certifies  the  note  as  "  good,"  dis- 
covers that  it  did  so  erroneously — as,  where  the  drawer  had  no  funds 
— and  it  notified  the  holder  of  the  mistake,  in  time  to  have  the  note 
protested  and  notify  the  indorser,  then  the  certifying  bank  is  not  liable. 
Same  authority. 

627.  So,  a  verbal  certification  of  a  note,  by  the  proper  officer,  that 
it  is  "  good,"  will  have  the  same  binding  force  on  the  bank  as  though 
he  had  written  "  good  "  across  it.     Espy  v.  Bank  of  Cincinnati,  18 
Wallace,  617  ;  Robson  v.  Bennett,  2  Taunton,  388. 

628.  And,  should  the  proper  officer  of  the  bank,  the  cashier  or  the 
party  permitted  by  the  bank  to  bind  it  in  similar  ways,  promise  ver- 
bally to  honor  a  check  of  a  certain  party,  and  which  promise  is  com- 
municated by  the  drawer  and  the  proper  bank  officer  to  a  third  person, 
who   receives  the  check  upon  the  faith  of  the  promise  so  made,  the 
bank  will  be  bound  to  pay  it ;  but  otherwise,  if  the  holder  of  the  check 
did  not  take   it   on  the  faith  of  such  promise.     Nelson  v.  First  Nat. 
Bank,  47  Ills.  36 ;  Bank  v.  Pettit,  41  Ills.  492. 

629.  It  seems  from  the  above  that  the  bank  would  be  bound  on  a, 
promise  to  honor  a  check,  upon  the  faith  of  which  a  party  was  induced 
to  I'eceive  it  from  a  drawer  who  had  no  funds  to  his  credit. 

630.  Where  an  officer  of  the  bank,  in  the  usual  discharge  of  his 
duties,  is  guilty  of  fraudulent  misrepresentation,   or  any  other  actr 
which,  if  done  by  an  individual,  would  be  void  for  fraud,  the  contract 
becomes  void  as  against  the  bank ;  but   the   act  must  be  that  of  the 
officer  within  the  sphere  of  duties  allotted  to  him.     Atlantic  Bank  v, 
Merchants'1  Bank,  10  Gray,  532. 

631.  And,  whatever  is  said  or  done  by  an  officer  of  a  bank  in  the 
discharge  of  his  proper  duties,  will  bind  the  bank ;  and  whatever  in- 
formation is  given  him   pertaining  to  his  department,  will  constitute 
knowledge  on  the  part  of  the  bank,  and  it  will  be  liable  to  all  the  con- 
sequences of  this  knowledge. 

632.  But  for  acts  done  by  the  officer  beyond  the  scope  of  his  duties 
and  not  in  his  official  capacity,  and  knowledge  obtained  by  him  in  his 
individual  capacity,  and  while  he  was  not    in    discharge    of   duties 
pertaining  to  the  subject  about  which  the  information  was  obtained,  is 
no  notice  to  the  bank,  and  it  is  not  liable  to  the  consequences  of  the 
knowledge  or  for  the  act  done.     Matthews  \.  Mass.  Nat.  Bank,  U.  S, 
Circuit  Court  of  Mass.  1875 ;    Hooker  v.  Eagle  Bank,  30  N.  Y.  83. 

633.  Upon  the  same  principle,  if  a  bank  appoints  an  officer, or  per- 
mits him  to  perform  the  usual  duties  and  functions  of  a  certain  office,, 
it,  by  this  act  puts  him  forward  as  its  agent  authorized  to  do  any  act 
to  bind  the  bank  which  falls  within  the  sphere  of  its  duties,  and  the 
public  will  have  a  right  to  presume  he  has  been  clothed  with  all  the 
necessary  powers  usual  to  the  proper  discharge  of  those  duties ;  and  if 
the  bank  has,  as  a  matter  of  fact  limited  the  powers  of  such  an  officer 
from   any  ordinary  usage,  the  burden  of  proof  will  devolve  on  the 
bank  to  show  that  the  party  who  is  seeking  to  hold  the  bank  liable  on 
a   contract  made  by  such  an  officer  in  the  line  of  duty,  or  the  usual 
duties  of  such  an  office,  knew  that  his  powers  were  limited,  and  the 
act  done  by  him,  or  the  contract  made,  exceeded  his  limited  powers. 
Matthews  v.  Mass.  Nat.  Bank,  U.  S.  Circuit  Court  for  Mass.  1875. 

634.  But,  in  the  absence  of  such  actual  knowledge,  the  presump- 


OF   STANDARD   DECISIONS.  91 

tion  is  regularity  in  the  acts  of  the  officer  making  the  contract  or  do- 
ing the  act  binding  the  bank. 

635.  It  may  also  appear  that  an  officer  has  willfully  done  an  act 
which  is  seemingly  within  the  line  of  his  duty,  but  which  he  had  no 
authority  to  do — as,  the  "  cashier  may  willfully  make  a  transfer  or  in- 
dorsement in  direct  disobedience  of  special  directorial  instructions  ; " 
"  the  outside  party,  dealing   with  him  in  good  faith  without  notice  of 
the  irregularity,"  may  hold  the  bank  liable  for  his  acts. 

636.  It  is  the  inherent  duty  of  the  cashier  to  indorse  paper,  and  a 
party  has  a  right  to  suppose  when  he  does  it  he  has  the  full  right  to 
do  it,  and  the  bank  will  be  liable  on  such  indorsements.     Morse,  p.  152 ; 
City  Bank  v.  Perkins,  29  N.  Y.  554. 

637.  So,  if  a  party  makes  a  contract  with  him  as  cashier,  or  if  the 
cashier  rejects  a  contract  proposed  to  him  as  cashier,  it  will  be  deemed 
the  act  of  the  bank  and  not  of  the  cashier.     New  Hope  and  Delaware 
Bridge  Co.  v.  Phoenix  Bank,  3  N.  Y.  166. 

638.  The  counterpart  of  this  proposition  is  also  true.     The  bank 
will  be  protected  in  paying  a  check  of  a  cashier  of  another  bank  which 
has  a  fund  to  its  credit  in  the  paying  bank,  no  matter  if  the  fund  went 
to  the  depositor  bank  or  not,  as  the  cashier  is  presumably  the  proper 
officer  to  draw  against  the  funds  of  his  bank.     And  it  is  proper  for 

him  to  designate  himself  as  cashier  of bank,  to  show  he  draws 

the  check  officially.     "  But  should  he  fail  to  make  this  fact  clear  by 
these  or  any  other  words  in  the  instrument,  yet,  if  the  drawee  bank 
pays  the  check  from  corporate  funds,  it  will  be  protected  in  the  pay- 
ment, and  it  will  be  a  valid  payment,  if,  as  a  matter  of  fact,  the  cashier 
was  acting  officially,  and  did  intend  to  draw  against  the  balance  stand- 
ing to  the  credit  of  his  bank  "  or  corporation.     Morse,  p.  150. 

639.  And,  the  paying  bank  will  be  allowed  to  prove  the  cashier 
has  no  individual  credit,   but  that  the   funds   actually   went   to  his 
corporation.      Mechanics1    Bank    v.    Bank    of  Columbia,   5   Wheat. 
326. 

640.  As  the  cashier  is  the  proper  party  to  carry  on  and  open  all 
the  correspondence  of  the  bank,  all  communications  made  to  him  in  his 
official  capacity  will  be  binding  on  the  bank  and  affect  it  with  notice. 
And  it  becomes  the  duty  of  the  cashier  to  "  communicate  the  contents 
of  all  letters  to  the  proper  official  within  whose  province  the  subject 
matter  falls,"  and  "  to  see  that  the  information  contained  in  the  letter 
is  promptly  laid  before  the  proper  person."     Morse,  p.  165. 

641.  Usually,  the  cashier  cannot  make  a  contract  that  will  bind  the 
bank  ;  as  before  said,  it  is  within  the  province  of  the  duties  of  the  presi- 
dent or  directors  to  make  contracts. 

642.  Yet,  where  all  the  negotiations  are  carried  on  by  letter,  and 
the  cashier  makes  a  proposition  which  is  accepted,  or  accepts  one  that 
is  made  in  this  way,  it  binds  the  bank.     New  Hope  and  Delaware 
Bridge  Co.  v.  Phoenix  Bank,  3  N.  Y.  166. 

643.  And  all  verbal  statements  made  by  the  cashier  while  in  the 
discharge  of  his  duties,  and  concerning  the  business  of  the  bank,  will 
bind  the  bank,  if  acted  upon. 

644.  As  where  a  party,  even  a  stranger,  inquires  of  the  proper 
officer  of  the  bank,  whether  a  certain  note  made  payable  there  had  been 
paid,  or  whether  a  check  drawn  on  it  bears  signature  of  a  depositor  or 


92  MONROE'S  DIGEST 

Customer  of  the  bank,  or  whether  the  depositor  has  to  his  credit  the 
amount  specified  in  the  check,  and  the  officer  is  at  the  same  time  in- 
formed that  the  party  will  rely  on  his  statements,  and  should  act  ac- 
cordingly, as,  for  instance,  to  part  with  property  on  the  strength  of 
what  the  officer  may  say,  the  bank  will  be  held  bound  for  these  declara- 
tions, and  liable  for  damage  the  party  making  the  inquiry  may  suffer. 
Espy  v.  Bank  of  Cincinnati,  18  Wallace,  604  ;  Moore  v.  Bank  of  Com- 
merce, 52  Mo.  377. 

645.  But,  where  the  officer  is  not  notified  or  informed  that  the 
party  making  the  inquiries  is  about  to  act  on  the  information  sought, 
or  where  his  attention  is  not  directed  sharply  to  the  importance  of  the 
transaction,  it  will  only  be  regarded  as  an  act  of  courtesy  on  the  part 
of  the  officer  and  not  the  act  of  the  bank,  and  consequently  the  bank 
will  not  be  bound.     Franklin  Bank  v.  Stewart,  37  Maine,  519. 

646.  The  cashier  is  generally  the  chief  executive  officer  of  the 
bank,  and  most  of  the  transactions  of  the  bank  are  done  through  him, 
and  "  the  bank  is  bound  by  all  the  legal  implications  or  inferences 
which  must,  as  a  matter  of  law,  grow  out  of  those  acts  of  the  cashier 
which  he  does  in  the  prosecution  of  any  of  the  functions  included  in  his 
agency."     He  has  the  power,  and  can  bind  the  bank,  "  to  collect  and 
give  receipts  for  sums  collected."     Morse,  p.  181. 

64T.  Ordinarily,  he  has  no  authority  to  discharge  the  debtor  with- 
out actual  payment,  or  to  bind  the  bank  by  an  agreement  that  a  surety 
shall  not  be  looked  to  for  payment,  in  case  the  principal  does  not  pay ; 
but  upon  inquiry  by  the  surety,  if  he  should  inform  the  surety  that  the 
note  is  paid,  intending  that  the  surety  should  rely  on  the  statement, 
and  the  surety,  acting  on  this  information,  should  give  up  securities  or 
should  indorse  other  paper,  the  bank  is  estopped  from  saying  the 
paper  was  not  actually  paid.  Cochecho  Nat.  Bank  v.  Haskell,  51  N.  H. 
116. 

648.  A  bank  is  not  liable  for  the  misrepresentations  fraudulently 
made  by  a  cashier,  who  knew  the  representation  to  be  false  at  the  time 
he  made  them,  where  the  giving  the  information  is  not  strictly  within 
the  sphere  of  his  duties. 

649.  A  case  was  decided  in  England,  Swift  v.  Junesbury,  Exch. 
Ohamber,  in   1874,  which  is  referred  to  in   Central  Law  Journal  of 
April  2,  1874,  on  this  point :     A  customer  of  a  bank  applied  to  his 
bank  for  information  concerning  the  standing  of  a  party  living  at  a 
distance.     The  manager  of  this  bank  wrote  to  the  manager  of  the  bank 
where  the  party  resided,  asking  for  the  standing  of  the  party,  stating 
the  reasons  for  the  inquiry.     The  manager  of  the  latter  bank  wrote 
that  the  party  was  perfectly  responsible.     The  court  held  the  bank  not 
liable ;  but  that  the  manager  was  personally  liable  for  the  entire  loss 
resulting  from  the  misrepresentation. 

650.  A  bank  is  not  liable  for  negligence  or  want  of  skill  on  the 
part  of  its  officer,  who  does  an  act  which  has  never  been  settled  by  the 
courts,  and,  concerning  which,  there  is  no  established  usage  among 
banks ;  as  for  protesting  a  "  post  note,"  without  giving  days  of  grace. 
Mechanics'1  Bank  v.  Merchants'1  Bank,  6  Met.  13. 

651.  Should  an  officer  of  the  bank  take  a  check  in  payment  of  a 
note  left  with  it  for  collection,  and  the  check  should  not  be  paid,  it  is 
liable  to  the  owner  of  the  note,  even  though  the  bank  should  show  a 


OF   STANDARD  DECISIONS.  95 

custom  among  banks  and  business  men  to  take  checks  from  good  parties- 
in  payment  of  debts.      Whitney  v.  Esson,  99  Mass.  310. 

652.  Where  a  depositor  of  a  bank  instructs  his  bank  to  pay  checks- 
out  of  his  deposit  account  drawn  by  an  agent,  for  a  definite  period 
only,  and  the  bank  is  informed  accurately  of  the  time,  it  must  only  pay 
checks  drawn  within  that  time,  or  it  will  be  liable  to  the  depositor,, 
even  though  the  depositor's  pass-book  has  been  balanced  several  times. 
Manufacturers1  Bank  of  Chicago  v.  Barnes,  Sup.  Court  of  111.  1873. 

653.  In  this  case,  it  was  shown  depositor  did  not  examine  his 
pass-book  till  several  months  afterwards. 

654.  Where  a  bank  holds  a  note  made  by  one  of  its  depositors,  and 
at  maturity  has  sufficient  funds  of  the  depositor  to  pay  it,  and  neglects 
to  so  appropriate  the  fund,  and  the  depositor  afterwards  withdraws  hia 
fund,  not  leaving  sufficient  to  pay  the  note,  the  neglect  of  the  bank  will 
discharge  the  surety  ;  provided,  the   surety  notified  the  bank  that  he 
requires  it  to  enforce  its  lien  on  the  property  of  the  depositor  in  its- 
possession  and  subject  to  the  lien.     Dawson  v.  Real  Estate  Bank,  5 
Ark.  283. 

655.  In  this  case,  it  was  even  held  that  without  such  demand  and 
notice  from  the  surety,  the  bank  would  be  bound  to  enforce  its  lien  on 
the  property  of  the  depositor  and  maker  of  the  note,  or  the  surety 
would  be  discharged.     But  this  is  opposed  to  the  leading  cases  on  this- 
point,  and  the  true  rule  is  that  above.     Marsh  v.  Oneida  Bank,  34 
Barb.  N.  Y.  298. 

656.  Where  a  customer  of  a  bank  instructs  it  to  pay  certain  drafts 
drawn  by  A,  whenever  A  produces  to  the  bank  "clean  bills  of  lading  " 
for  certain  merchandise,  and  A  presents  bills  of  lading,  apparently 
genuine,  but  which  turn  out  to  be  forged — the  bank  is  not  liable  to  its 
customer  to  repay  to  him  sums  so  advanced.      Ulster  Bank  v.  Synott,  5 
Irish  Kept.  595  ;  decided  in  1871. 

657.  The  principle  involved  in   this  case  is,  that  the  bank  is  not 
presumed  nor  bound  to  know  the  signature  of  the  official  whose  duty 
it  is  to  sign  the  bill  of  lading,  and  that  where  the  customer  by  his  act 
leads  the  bank  into  the  belief  that  a  certain  party  is  owner  of  and  will 
produce  a  genuine  bill  of  lading,  it  is  justified,  in  the  absence  of  sus- 
picious circumstances,  in  assuming  the  bill  of  lading  to  be  correct^ 
The  customer  should  have  been  careful  enough  to  furnish  the  bank 
with  the  genuine  signature  of  the  officer  whose  duty  it  was  to  sign  the 
bill  of  lading. 

658.  Where  a  bank  employs  both  a  receiving  and  a  paying  teller, 
and  a  customer  comes  to  pay  a  debt  due  to  the  bank,  and,  in  the  absence 
of  the  receiving  teller,  whose  customary  duty  it  is  to  receive  themone3r, 
he  pays  it  to  the  paying  teller  and  the  latter  does  not  give  him  credit 
therefor,  yet  the  bank  will  be  liable  for  the  amount  so  paid,  unless  the 
customer  knew,  as  a  matter  of  fact,  that  the  paying  teller  had  no  au- 
thority to  receive  the  money.     East  River  National  Bank  v.  Gore,  57 
N.  Y/597  ;  decided  September,  1874. 

659.  Where  the  bank,  through  mistake,  gives  its  customer  credit 
for  the  amount  of  a  note  left  with  it  for  collection  simply,  it  must,  on 
discovering  the  mistake,  promptly  notify  the  customer,  and  do  no  act 
which  looks  like  exercising  ownership  over  the  note,  as  suing  on  the 
note  in  its  own  name,  or  it  will  be  held  to  have  waived  the  error  and 


D4  MONROE'S  DIGEST 

made  the  note  its  own.      Whetherill  v.  Bank  of  Pennsylvania,  1  Miles, 
399. 

660.  It  has  been  held  that  a  bank  may  assume  a  liability,  which  is 
nearly  akin  to  the  principle  of  certifying  a  check — as  where  it  credits 
to  the  payee  the  amount  of  the  check,  where  both  the  drawer  and  the 
payee  are  its  customers,  when,  as  a  matter  of  fact,  the  drawer  had  not 
sufficient  funds  to  pay  the  check,  and  though  the  credit  was  given  by 
mistake  in  the  hurry  incident  to  business.     This  seems  to  be  the  rule, 
•even  where  the  depositor  to  whom  the  amount  of  the  check  was  credited 
had  not  drawn  against  the  fund  so  placed. to  his  credit.     Boltonv. 
Richard,  6  Term  Reps.  139. 

661.  Of  course  the  bank  will  not  be  liable  for  the  mistake,  and  can 
correct  it,  if  the  depositor  knew  the  drawer  had  no  funds  or  was  guilty 
of  any  other  fraud,  on  the  same  principal  that  the  bank  could  recover 
a  payment  made  in  the  same  way.     Morse,  p.  320. 


RIGHTS,  DUTIES   AND   LIABILITIES   OF    NATIONAL   BANKS. 

662.  1.  Rights  or  powers  of  national  banks  are :  to  exercise  all 
such  incidental   powers  as  are  necessary  to  carry  on  the  business  of 
banking,  by  discounting  and  negotiating  notes,  drafts  and  bills ;   by 
receiving  deposits ;  by  buying  and  selling  exchange,  coin  and  bullion  ; 
by  loaning  money  on  personal  security  ;  by  obtaining,  issuing  and  cir- 
culating notes  according  to  the  provisions  of  the  act  of  Congress. 

663.  The  directors  have  power  to  regulate,  by  by-laws  not  incon- 
sistent  with   the   provisions   of    said   act,  the   manner   in   which  its 
•directors  and  other  officers  shall  be  elected  or  appointed,  the  manner  in 
which  its  stock  and  other  property  shall  be  transferred,  and  its  general 
business  conducted.     Act  of  Congress,  1864,  §  8. 

664.  Under  this  section  it  has  been  held  that  a  national  bank  has 
no  power  to  act  as  a  broker,  and  sell  railway  and  other  bonds  on  com- 
mission ;  and  that  an  action  cannot  be  maintained  against  such  a  bank 
for  damages  sustained  through  the  misrepresentation  of  its  teller  as  to 
the  character  of  the  bonds  of  a   railway  company  which  it  sells  to  a 
-customer ;  that  the  power  to  engage  in  such  a  transaction  not  having 
been  conferred  upon  the  bank  by  the  statutes  creating  and  regulating 
it,  the  bank  may  set  up  the  defence  of  ultra  vires  in  such  an  action. 
Meckler  v.  First  Nat.  Bank  of  Hagerstown,  Court  of  Appeals  of  Mary- 
land, April  term,  1875  ;  reported  in  2d  Central  Law  Journal,  471. 

665.  It  is  entitled  to  receive  from  the  comptroller  of  the  currenc}' 
-circulating  notes  of  different  denominations,  equal  in  value  to  ninety 
per  cent,  of  the  current  market  value  of  the  United  States  bond,  de- 
posited with  the  Treasurer  of  the  United  States  ;  but  not  exceeding 
ninety  per  centum  of   the  amount  of  said  bonds,  at   the   par   value 
thereof;  and  at  no  time  can  the  amount  of  the  notes  issued  to  a  bank 
exceed  the  amount  of  the  capital  stock  at  that  time  actually  paid  in. 
Ibid,  §  21. 

666.  It  has  the  right  to  purchase,  hold   and  convey  such   real 
estate,  and  such  only,  as  shall  be  necessary  for  its  immediate  accommo- 
dation in  the  transaction  of  its  business ;  such  as  shall  be  mortgaged 


OF  STANDARD   DECISIONS.  95 

or  sold  to  it  in  good  faith  to  secure,  or  in  payment  of,  debts  previously 
contracted  ;  and  such  as  it  may  purchase  at  sheriff's  sale  in  the  collec- 
tion of  debts  due  to  it.  And  in  no  other  manner  and  for  no  other 
purpose  can  it  purchase  or  hold  real  estate  ;  and  it  can  hold  real  estate, 
purchased  in  payment  of  debts  due  to  it,  for  five  years,  and  no  longer. 
Ibid,  §  28. 

667.  It  has  been  decided  that  a  mortgage  on  real  estate  made  to  a 
national  bank  to  secure  present   or   future   loans   are  void,  as   being 
against  the  provisions  of  the  act  of  Congress ;  it  can  only  take  real 
estate  security,  to  prevent  losing  loans  previously  made,  in  good  faith. 
Fuicler  v.  Scully,  72  Penn.  St.  456. 

668.  National  banks  cannot   be  held  responsible  for  special  de- 
posits (as  box  of  valuables),  left  with  their  cashier  or  president,  with- 
out showing  that  the  directors  assented  to  it,  or  that  the  bank  was  in 
the  habit  of  receiving  those  deposits.     It  is  even  a  question  whether 
those  banks  have  a  right  to  receive  special  deposits.     This  latter  point 
is  not  definitely  settled,  but  strongly  doubted  ;  but  the  first  point — 
viz  :  that,  without  proving  usage  on  the  part  of  the  particular  bank  in 
receiving  special  deposits  or  sanction  on  the  part  of  the  directors  of 
that  particular  act,  the  bank  cannot  be  held  liable — is  settled  clearly 
and  definitely  by  the  two  following  cases  :     First  Nat.  Bank  of  Lyons 

v.  Ocean  Nat.  Bank,  N.  Y.  Court  of  Appeals,  March,  1875  ;    Wiley  v. 
Nat.  Bank  of  Brattleboro,  Supreme  Court  of  Vermont,  February,  1875. 

669.  National  banks  cannot  be  proceeded  against  in  bankruptcy  ; 
if  insolvent,  the  remedy  is  to  proceed  in  the  mode  pointed  out  by  the 
National  Banking  Act  and  its  amendments.     Inre,  Manuf.  Nat.  Bank, 
District  Court  of  TJ.  S.,  Northern  District  Illinois,  December,  1873. 

610.  The  term  "  capital,"  employed  by  banks  in  the  business  of 
banking,  in  the  110th  section  of  the  revenue  act  of  July  13th,  1866,  and 
on  which  the  banks  are  liable  to  pay  taxes,  does  not  include  moneys 
borrowed  by  them  temporarily  in  the  ordinary  course  of  the  business 
of  the  bank.  It  applies  only  to  the  property  or  moneys  of  the  bank, 
actually  subscribed  or  set  apart  from  other  uses  and  permanently  in- 
vested in  the  business.  Bailey,  Collector  v.  Clark,  Supreme  Court  of 
U.  S.  October  term,  1874. 

671.  While  this  decision  applies,  in  terms,  only  to  the  rights  of  a 
private  banker,  the  principle  is,  unquestionably,  equally  applicable  to 
incorporated  banks. 


DUTIES   OF   NATIONAL  BANKS. 

672.  No  association  can  be  organized  under  this  act  with  a  less 
capital  than  one  hundred  thousand  dollars,  nor  in  cities  whose  popula- 
tion exceeds  fifty  thousand  persons  with  a  less  capital  than  two  hun- 
dred thousand  dollars  ;  but,  with  the  approval  of  the  secretary  of  the 
treasury,  a  bank  in  a  place  whose  population  does  not  exceed  six  thou- 
sand people  may  be  organized  with  a  capital  of  fifty  thousand  dollars. 
Act  of  1864,  §  7. 

673.  A  bank  may  increase  its  original  capital  under  the  direction 
of  the  comptroller  of  the  currency  ;  but  no  increase  is  valid  until  the 
whole  amount  of  such  increase  is  actually  paid  in  and  notice  of  such 


96  MONROE'S  DIGEST 

fact  transmitted  to  the  comptroller,  and  his  certificate,  approving  such 
increase,  transmitted  to  the  bank.     Ibid,  §  13. 

674.  The  bank  is  not  authorized  to  commence  business  till  fifty 
per  cent,   of  its  capital  is  actually  paid  in,  and  the  remainder  of  the 
capital  must  be  paid  in  installments  of  ten  per  cent,  at  least  as  often  a& 
once  a  month.     Ibid,  §  14. 

675.  Each  bank,  before  beginning  business,  must  deposit  "with  the 
Treasurer  of  the  United  States  registered  bonds  of  the  United  Statesr 
not  less  than  thirty  thousand  dollars,  nor  less  than  one-third  of  the 
capital  stock  paid  in  ;  and  it  must  keep,  at  all  times  on  deposit,  with 
said  Treasurer,  such  bonds  amounting  to  at  least  one-third  of  its  capital 
stock  actually  paid  in.     Ibid,  §  16. 

676.  It  is  the  duty  of  each  bank  to  have  on  hand,  at  all  times,  in, 
lawful  money  of  the  United  States,  an  amount  equal  to  at  least  fifteen 
per  cent,  of  its  notes  in  circulation  and  its  deposits ;  and  banks  located 
in  certain  cities,  designated  in  section  31,  must  have  on  hand  at  least 
twenty-five  per  cent,  of  such  money ;  and  whenever  this  reserve  falls 
below  the  above  proportion,  the  bank  is  prohibited  from  declaring  any 
dividends  of  its  profits  or  making  loans  or  discounts,  except  the  dis- 
counting of  or  buying  bills  of  exchange  payable  at  sight,  until  the 
above  proportion  between  its  reserve  and  notes  and  deposits  is  once 
more  restored.     Ibid,  §  31. 

677.  Dividends  of  the  net  profits  may  be  declared  semiannually, 
but  it  is  the  duty  of  the  directors,  before  declaring  any  dividend,  to= 
carry  one-tenth  part  of  the  net  profits  of  the  preceding  half-3rear  to  its 
surplus  fund,  until  this  fund  shall  amount  to  twenty  per  cent,  of  its 
capital  stock.     Ibid,  §  33. 

678.  It  is  the  duty  of  the  bank  to  make  to  the  comptroller  of  the 
currency  not  less  than  five  reports  annually,  according  to  the  form  pre- 
scribed by  the  comptroller,  verified  by  the  oath  of  the  president  or 
cashier,  and  attested  by  the  signature  of  at  least  three  of  the  directors  \ 
and  such  report  must  also  be  published  in  some  newspaper  of  the  county 
where  the  bank  is  located.     The  comptroller  may  also,  in  his  discretion,, 
call  for  special  reports  at  any  time.     And  the  bank  is  liable  to  a 
penalty  of  $100  for  every  day  it  is  in  default,  after  the  first  five  day  a 
when  the  report  is  due. 

679.  In  addition  to  the  above  reports,  the  bank  must  report  to  the 
comptroller,  within  ten  days  after  a  dividend  is  declared,  the  amount 
of  such  dividend,  the  amount  of  net  earnings  in  excess  of  the  dividend, 
the  report  to  be  attested  by  the  oath  of  the  president  or  cashier.     Act 
of  March  3.  1869. 

680.  The  bank  must  never  be  indebted  to  an  amount  exceeding  the 
amount  of  its  capital  stock  actually  paid  in  and  remaining  undiminished 
by  losses,  except  on  the  following  accounts  :  1.  On  account  of  its  cir- 
culation ;  2.  On  account  of  moneys  deposited  with  or  collected  by  it ; 
3.  On  account  of  bills  of  exchange  or  drafts  drawn  against  money 
actually  on  deposit  to  its  credit,  or  due  thereto ;  4.  On  account  of  lia- 
bilities to  its  stockholders  for  dividends  and  reserved  profits.     Act  of 
1864,  §  36. 

681.  The  bank  is  not  permitted  to  pledge,  directly  or  indirectly,  any 
of  its  notes  of  circulation,  for  the  purpose  of  procuring  money  to  be 
paid  in  on  its  capital  stock  or  to  be  used  in  its  banking  operations ;  nor 


OF  STANDARD   DECISIONS.     '  97 

is  it  permitted  to  use  its  circulating  notes,  in  any  manner  or  form,  to 
create  or  increase  its  capital  stock.     Ibid,  §  37. 

682.  Neither  the  bank  nor  any  member  thereof  is  permitted  to* 
withdraw,  nor  permitted  to  be  withdrawn,  either  in  the  form  of  dividends- 
or  otherwise,  any  portion  of  its  capital.     And  if  any  losses  are  sus- 
tained by  the  bank,  which  are  equal  to  or  exceed  its  undivided  profits- 
then  on  ha»d,  then  no  dividend  can  be  made.     No  dividend  can  be  de- 
clared to  an  amount  greater  than  its  net  profits  on  hand,  after  deduct- 
ing from  such  profits  the  losses  and  bad  debts.     All  debts  due  the 
bank,  on  which  interest  is  past  due  and  unpaid  for  the  period  of  six 
months,  unless  the  debts  are  well  secured,  and  in  process  of  collection, 
are  to  be  counted  as  bad  debts  in  making  this  computation.     Ibid,  §  38. 

683.  The  bank  is  not  permitted  to  pay  out  on  loans  or  discounts,  or 
in  purchasing  bills  of  exchange,  or  in  payment  of  deposits,  or  in  any 
other  mode  to  pay  or  put  in  circulation,  the  notes  of  any  bank  or  bank- 
ing association,  which  notes  are  not  at  such  time  receivable,  at  par,  on 
deposit,  and  in  payment  of  debts  by  the  association  which  has  paid  out 
or  put  in  circulation  the  said  notes  ;  nor  is  it  permitted  to  put  in  cir- 
culation the  notes  of  any  bank  which  does  not  redeem  its  paper  in  law- 
ful money  of  the  United  States.     Ibid,  §  39. 

684.  It  is  the  duty  of  the  bank  to  keep  at  all  times  a  full  and 
correct  list  of  the  names  and  residences  of  all  its  shareholders,  with 
the  number  of  shares  owned  by  each.     This  list  is  to  be  open  during 
business  hours  to  the  inspection  of  its  shareholders  and  creditors,  and 
the  proper  taxing  officers  of  the  state.     A  copy  of  this  list  is  to  be 
transmitted  to  the  comptroller,  verified  by  the  oath  of  the  president  or 
cashier,  on  the  first  Monday  of  each  July.     Ibid,  §  40. 

685.  Where  a  law  of  the  State  where  the  bank  is  located  provides, 
that  the  cashier  shall  transmit,  to  the  clerks  of  the  several  towns  in, 
which  any  of  the  stockholders  of  that  bank  reside,  a  true  list  of  such 
stockholders,  and  a  penalty  is  imposed  on  the  cashier  for  the  neglect  of 
such  duty,  the  fact  that  the  bank  keeps  such  a  list  of  its  stockholders 
as  is  required  by  act  of  Congress,  and  that  the  list  is  accessible  to  the 
assessors  of  the  town  on  application  to  the  bank,  will  not  absolve  the 
cashier  from  complying  with  the  requirement  of  the  State  law  on  this 
subject,  nor  mitigate  the  penalty.     Newman  v.  Wait,  46  Vermont,  Feb- 
ruary Term,  1874. 

686.  Shares  in  national  banks  are  taxable  at  the  place  of  its  loca- 
tion by  the  State  in  which  the  bank  has  its  habitat,  and  that  is  so, 
whether  the  stockholders  are  residents  or  not  of  that  place.     Tappan  v. 
Merchants1  Nat.  Bank  of  Chicago,  Supr.  Court  of  U.  S.,  April,  1874. 
Shares  of  stock  in  national  banks  may  be  taxed  by  States  or  muni- 
cipal corporations  in  the  place  where  the  bank  is  situated,  and  may  be 
assessed  at  a  higher  rate  than  their  par  value.     They  may  be  assessed 
at  their  market  value.     Hepburn  v.  School  Directors  of  Borough  of 
Carlisle,  Penn.;  decided  by  the  Sup.  Court  of  U.  S.  in  1875. 


LIABILITIES   OF   NATIONAL  BANKS. 

68T.     The  capital  stock  of  the  bank  is  to  be  divided  into  shares  of 
one  hundred  dollars  each,  which  are  to  be  considered  personal  property 

7 


98  MONROE'S  DIGEST 

and  transferable  on  the  books  of  the  bank,  in  the  manner  provided  by 
its  article  of  incorporation  ;  and  every  person  becoming  owner  of  such 
shares  by  transfer  succeeds  to  all  the  rights  and  liabilities  of  the 
vendor ;  and  no  change  can  be  made  in  the  articles  of  association  by 
which  the  rights,  remedies  or  security  of  existing  creditors  of  the  bank 
shall  be  impaired.  The  shareholders  are  held  individually  liable,  equally 
and  rateably,  and  not  one  for  another,  for  all  contracts  and  engage- 
ments of  the  bank,  to  the  extent  of  the  amount  of  their  stock  therein, 
at  its  par  value,  in  addition  to  the  amount  invested  in  such  shares. 
Act  of  1864,  §  12. 

688.  The  total  liabilities  to  any  bank,  of  any  person,  or  of  any 
company,  corporation  or  firm,  for  money  borrowed,  including  in  the 
liabilities  of  a  company  or  firm  the  liabilities  of  the  several  members 
thereof,  must  at  no  time  exceed  one-tenth  part  of  the  amount  of  the 
capital  stock  of  the  bank  actually  paid  in.     The  discount  of  bona  fide 
bills  of  exchange  drawn  against  actually  existing  values,  and  the  dis- 
count of  commercial  paper  actually  owned  by  the  person  or  persons, 
corporation  or  firm  negotiating  the  same,  is  not  considered  as  money 
borrowed.     Ibid,  §  29. 

689.  It  has  been  decided  by  the  Supreme  Court  of  Pennsylvania, 
in   O'Hare  v.  National  Bank,  32   Leg.  Intel.  29,  that  the  act  of  1864 
(§  29)  does  not  prevent  recovery  on  securities  taken  by  a  national 
bank  for  a  loan  in  excess  of  one-tenth  of  its  capital,  the  transaction  not 
being  collusive  between  the  bank  and  the  borrower.     The  court  say : 
"  Evidently  the  limitation  of  the  indebtedness  to  the  one-tenth  was  in- 
tended as  a  general  rule  for  conducting  the  business  of  the  bank — a 
rule  laid  down  from  experience  to  regulate  its  loans  for  its  own  best 
interests  and  those  of  stockholders  and  creditors — not  a  rule  to  regu- 
late its  customers.     It  was  a  regulation  to  prevent  these  associations 
from  splitting  on  the  rock  which  has  ruined  so  many  banks,  to  wit : 
that  of  lending  too  much  of  their  capital  to  one  person  or  firm — the 
intention  being  to  protect  the  association  and  its  stockholders  and  credi- 
tors from  unwise  banking.     We  cannot  suppose  it  was  meant  to  injure 
them  by  forbidding  recovery  of  injudicious  loans."     This  is  a  sound 
construction  of  the  law  in  question.     Albany  Law  Jour.,  January  30, 
1875. 

690.  The  bank  may  charge,  on  loans  and  discounts,  interest  at  the 
rate  allowed  by  the  laws  of  the  State  where  it  is  located ;  but  where, 
by  the  laws  of  such  State,  a  different  rate  is  fixed  for  banks  of  issue 
•organized  under  the  State  laws,  the  rate  so  fixed  is  the  rate  which  the 
national  bank  may  receive.     And  when   no  rate  is  fixed  by  the  State 
Jaws,  then  the  bank  may  receive  seven  per  cent.,  and  such  interest  may 
4)6  taken  in  advance.     The  knowingly  taking  a  greater  rate  of  interest 
than  the  above  creates  a  forfeiture  of  the  entire  interest  on  the  debt; 
and  in  case  usurious  interest  has  been  actually  paid  to  the  bank,  the 
person  or  his  representatives  may  recover  back,  in  an  action  of  debt, 
twice  the  amount  of  the  interest  thus  paid  ;  provided,  that  the  action 
is  commenced  in  two  years  from  the  date  of  the  payment.     Adding  the 
current  rate  of  exchange  on  bills  payable  elsewhere  than  where  they 
are  negotiated  to  the  above  rate  of  interest  is  not  to  be  deemed  usury. 
Act  of  1864,  §  30. 

691.  The  provisions  of  the  Banking  Act  of  1864,  imposing  penalties 


OF   STANDARD   DECISIONS.  99 

upon  national  banks  for  taking  usury,  supersede  the  State  laws  upon 
that  subject.     Davis  v.  Randall,  115  Mass.  547  ;  decided  in  1874. 

692.  Usury  laws  of  states  are  not  applicable  to  national  banks  ; 
the  United  States  have  the  right  to  fix  interest  laws  applicable  to  those 
banks,  and  the  penalties  for  violations ;  and  those  laws  are  exclusive 
of  State  laws  on  the  same  subject,  as  applicable  to  those  banks.     Cen- 
tral Nat.  Bank  v.  Pratt,  2  Am.  Law  Times,  (N.  S.)  1. 

693.  Where  the  penalty  imposed  by  Congress  on  national  banks 
for  taking  usurious  interest  is  sought  to  be  enforced  in  a  State  other 
than  where  the  bank  is  situated  (the  bank  in  this  case  was  situated  in 
Iowa  and  the  suit  was  brought  in  Illinois)  the  court  has  no  jurisdic- 
tion, as  the  court  will  not  enforce  a  penalt}r  imposed  by  another  sov- 
ereign  State  on  its  subjects.     Miss.  Riv.  Telegraph  Co.  v.  first  Nat. 
Bank,  Supreme  Court  of  Ills.,  Januaiy,  1875. 

694.  Where,  as  in  New  York,  the  State  statute  prohibits  a  cor- 
poration  from   pleading   usury,   and  a   usurious   loan   is  made  by  a 
national  bank  to  a  corporation,  the  effect  of  such  statute  is  as  if  the 
State  laws  had  fixed  no  law  relating  to  interest,  and  the  transaction  is 
governed  simply  by  the  provision  of  act  of  Congress,  and  the  bank  in- 
curs the  penalties  of  that  act  and  not  those  of  State  laws.     Receiver 
of  Ocean  Nat.  Bank  v.  Estate  of  Wild,  United  States  Circuit  Court, 
S.  D.  of  N.  Y.,  10  Bankr.  Reg.  568. 

695.  Under  the  foregoing  section  it  has  been  held  that  where  a 
bank  stipulates  for  usurious  interest,  it  may  recover  the  principal  and 
that  only,  forfeiting  all  interest ;  and  where  the  usurious  interest  has 
been  paid,  the  penalty,  the  recovery  back  of  double  the  amount  of  the 
•excess  over  legal  interest  and  that  it  is  the  actual  payment  of  the 
usurious  interest  which  consummates  the  usury,  and  from  which  the 
limitation  of  the  suit  for  the  penalty  begins  to  run ;  and  held  further, 
that  in  a  suit  by  the  bank  against  an  indorser  of  a  note,  which  note  is 
the  result  of  several  renewals,  on  each  of  which  usurious  interest  has 
been  paid,  the  indorser  can  set  off  in  this  suit  all  the  excess  of  interest 
received  by  the  bank  on  the  several  renewals.     Brown  v.  Second  Nat. 
Bank  of  Erie,  72  Penn.  St.  209  ;  decided  1872. 

696.  Whenever  a  bank  is  notified  by  the  comptroller  that  its  re- 
serve  is  below  the  amount  required  by  law,  and  the  bank  fails  for 
thirty  da}Ts  thereafter  to  make  good  its  reserve,  the  comptroller  may, 
with  the  concurrence  of  the  secretary  of  the  treasury,  appoint  a  re- 
ceiver and  wind  up  its  business.     Act  of  1864,  §  31. 

697.  If  any  bank  fail  to  redeem  its  notes  at  the  places  of  deposit 
designated  by  the  comptroller,  he  may  appoint  a  receiver  and  proceed 
to  wind  up  its  business.     Ibid,  §  32. 

698.  The  bank  is  not  permitted  to  make  any  loan  or  discount  on 
the  security  of  the  shares  of  its  own  capital  stock  ;  nor  is  it  permitted 
to  be  the  purchaser  or  holder  of  its  stock,  unless  the  purchase  shall 
become  necessary  to  prevent  loss  of  a  debt  previously  contracted  in 
good  faith;  and  stock  so  purchased  must  be  sold  within  six  months 
from  the  day  of  purchase.     Ibid,  §'35.. 

699.  Under  this  section  it  has  been  held  that  a  party  owning  a 
stock  certificate  in  a  national  bank  may  transfer  the  same  by  delivery 
and  indorsement,  and  the  purchaser  gets  a  good  title,  even  though  the 
former  owner  was  indebted  to  the  bank,  and  the  bank  made  him  the 


100  MONROE'S  DIGEST 

loan  on  the  strength  of  it — for  national  banks  cannot  legally  make 
loans  on  their  stock  ;  and  it  is  the  duty  of  the  bank  to  make  the  trans- 
fer on  its  books,  whenever  the  owner  of  the  shares  has  disposed  of  the 
same.  The  only  exception  being,  when  it  is  necessarj'  to  take  pledge 
of  the  stock,  to  prevent  loss  of  loan  made  bona  fide  and  at  a  previous- 
time.  Bank  v  Lanier,  11  Wall.  369. 

700.  National  banks  have  no  lien  on  stock  of  stockholders  for  un- 
paid balance  due  from  them  on  general  account ;  of  course,  this  does- 
not  refer  to  unpaid  subscription  on  the  stock ;  nor  can  the  bank  im- 
prove  its  position  by  enacting  in  its  articles  of  incorporation  that 
stockholders  shall  not  be  permitted  to  transfer  their  stock  while  in- 
debted to  the  bank ;  such  a  provision  is  in  conflict  with  the  law  under 
•which  the  bank  is  incorporated,  and  is  therefore  null  and  void.      Bui- 
lard  v.  Bank,  18  Wall.  590. 

701.  It  would  seem,  however,  that  the  rule  is  otherwise  as  to  cash 
dividends  due  the  stockholder  on   his  shares.     The  following  is  the 
syllabus  made  by  the  Albany  Law  Journal  of  July  24,  1875,  of  the 
case  of  Hagar  v.  Union  Nat.  Bank,  63  Maine,  509. 

702.  "  A  bank  bad  sued  an  overdue  note  of  a  stockholder  and  at- 
tached his  shares.     During  the  pendency  of  this  action,  the  stock- 
holder demanded  payment  of  the  dividends  declared  upon  the  attached 
shares,  which  was   refused.     He   subsequently  settled   that   suit,  and 
then,  without  renewing  his  demand,  brought  the  present  action  for  his- 
dividends.     Held :     That  it  could  not  be  maintained  ;  that  a  bank  has 
the  right  to  hold  a  cash  dividend  as  pledged  for  the  indebtment  of  the 
shareholder  of  the  bank." 

703.  The  transfer  of  any  notes,  bills  and  other  evidences  of  debtr 
or  of  deposits  to  its  credit ;  the  assignments  of  mortgages,  sureties  on 
real  estate  or  judgments  ;  all  deposits  of  money,  bullion  or  other  valu- 
able thing,  for  its  use  or  for  the  use  of  its  shareholders  or  creditorsr 
and  all  payments  of  money  to  either,  made  after  the  commission  of  an 
act  of  insolvency,  or  in  contemplation  thereof,  with  a  view  to  prevent 
the  application  of  its  assets  in  the  manner  prescribed  by  law,  or  with  a- 
view  to  give  preference  of  one  creditor  to  another,  except  in  the  pay- 
ment by  the  bank  of  its  notes  is  utterly  null  and  void.     Act  of  1864,  § 
52. 

704.  If  the  directors  of  any  bank  knowingly  violate,  or  knowingly 
permit  any  of  its  officers,  agents  or  servants  to  violate  any  of  the  pro- 
visions of  the  act  of  Congress,  relating  to  national  banks,  the  bank  for- 
feits all  the  rights,  privileges  and  franchises  derived  from  said  act. 
Such  violations  however,  is  to  be  determined  and  adjudged  by  a  proper 
circuit,  district   or  territorial   court  of  the  United  States,  in  a  suit 
brought  by  the  comptroller  for  that  purpose.     And  in  cases  of  such 
violation,  every  director  who  participated  in  or  assented  to  the  same, is 
held  liable  in  his  personal  and  individual  capacity  for  all  damages  sus- 
tained in  consequence  of  such  violation  by  the  bank,  its  shareholders 
or  any  other  person.     Ibid,  §  53. 

705.  Although,  under  this  section,  the  bank,  as  such,  cannot  be 
proceeded  against  in  a  State  court,  it  would  seem  that  the  directors- 
might  be  sued  in  such  court  by  any  party  entitled  to  bring  the  action. 
This  doctrine  would  seem  to  follow,  from  the  principle  laid  down  in 
Commonwealth  v.  Barry,  cited  in  the  next  section. 


OF   STANDARD   DECISIONS.  101 

706.  Every  president,  cashier,  director  or  other  agent  of  the  bank 
•who  shall  embezzle  or  willfully  misapply  any  of  its  moneys  or  other 
assets,  or  who  shall,  without  authority  from  the  directors,  put  in  circu- 
lation any  of  its  notes  ;  or  who,  without  such  authority,  shall  issue  any 
•certificate  of  deposit,  draw  any  bill  of  exchange,  or  assign  any  of  the 
assets  of  the  bank  ;  or  who  shall  make  any  false  entry  in  any  book, 
report  or  statement  with  intent  to  defraud,  injure  or  mislead  any  per- 
son or  corporation,  shall  be  guilty  of  a  misdemeanor,  and  be  liable  to 
imprisonment  not  less  than  five  nor  more  than  ten  years.  Ibid,  §  55. 

701.  State  courts  have  jurisdiction  over  larcenies  committed  by 
officers  of  national  banks  by  embezzling  the  funds  of  the  bank,  and 
this  is  so,  though  the  act  of  Congress  of  1864  makes  the  embezzling  of 
those  funds  a  misdemeanor  under  the  laws  of  the  United  States. 
Commonwealth  v.  Barry,  116  Mass.  1 ;  decided  in  Sept.  1874. 

708.  Suits  against  national  banks  may  be  brought  in  the  United 
•States  or  State  courts  of  the  State  or  district  where  the  same  is  located, 
but  suits  to  enjoin  the  comptroller  from  enforcing  the  provisions  of 
the  acts  of  Congress  must  be  brought  in  the  United  States  courts.    Act 
of  1864,  §  57. 

709.  National  banks  cannot  be  sued  by  attachment  in  court  of 
States  other  than  where  they  are  located.    The  act  of  Congress  deprives 
the  State  court  of  jurisdiction  over  the  bank,  and  the  United  States 
court  will  enjoin  a  judgment  rendered  against  a  national  bank  under 
those  circumstances.     Cadle,  Receiver,  etc.  v.  Tracy,  11  Blatchf.,  Cir. 
€ourt  Rep.  101 ;  decided  April,  1873. 

710.  A  bank  is  not  permitted  to  offer  or  receive  United  States  or 
national  bank  notes  as  security  for  any  loan  of  monej',  nor,  for  a  con- 
sideration, can  it  agree  to  withhold   said  notes  from  use,  nor  can  it 
offer  or  receive  the  custody,  or  promise  of  custody,  of  such  notes  as 
security  or    as   a   consideration   for  a   loan    of    money.     A  violation 
of   these   provisions   is   a    misdemeanor,  subjecting    the    bank   to   a 
penalty  of  $1,000,  and  to  a  further  sum   equal   to  one-third  of   the 
money  so   loaned,  and  the   officers   making   such  loans  are  liable  to 
&  further  fine  in  a  sum  equal  to   one-fourth   of  the   sum    of   money 
so  loaned.     Act  of  Feb.  19,  1869. 

711.  A  national  bank  is  liable  to  be  sued  in  any  court  having  jur- 
isdiction ;  it  is  not  competent  for  Congress  to  restrict  the  jurisdiction 
to  any  particular  courts.     Cooke  v.   State  Bank  of  Boston,  52  N.  Y. 
96  ;  S.  C.,  50  Barb.  339. 

712.  A  religious  society  purchased  and  held  in  its  own  name  cer- 
tain shares  of  a  national  bank,  using  for  the  purpose  a  fund  which  had 
previously  been  given  to  such  society  by  a  testator,  the  whole  bequest 
being  used  in  the  purchase.     The  society  had  other  funds,  given  by 
other  donors,  which  were  otherwise  invested.     Held,  that  the  society 
was  not  to  be  regarded  as  a  trustee,  but  as  an  ordinary  stockholder, 
And  was  liable  as  such  to  assessment  for  the  debts  of  the  bank  on  its 
failure.     Davis  v.  Essex  Baptist  Society,  44  Conn.  582. 

713.  Under  and  by  the  provisions  of  National  Banking  Act  (§§  8, 
28),  a  national  bank  is  prohibited  from  .taking  a  mortgage  upon  real 
estate,  except  for  debts  contracted  prior  to  the  giving  of  the  mortgage  ; 
And  a  mortgage  given  to  secure  future  indebtedness  is  void.     Crocker 
v.  Whitney,  71  N.  Y.  161. 


102  MONROE'S  DIGEST 

714.  A  special  deposit  of  bonds  was  left  by  a  customer  with  the 
cashier  of  a  national  bank  for  safe  keeping,  with  the  knowledge  of  its 
directors,  and  the  cashier  gave  a  receipt  therefor.     The  bonds  were 
subsequently  stolen  and  the  bank  offered  no  satisfactory  explanation 
of  the  manner  of  the  theft.     Held,  that  there  was  sufficient  evidence  of 
gross  negligence  to  be  submitted  to  the  jury.     Held,  further,  that  a 
recovery  could  be  had  against  the  bank  if  the  bonds  were  stolen  through, 
the  gross  negligence  of  its  officers.     Bank  v.  Graham,  85  Penn.  «f  1. 

715.  It  seems  that  a  bank,  in  the  absence  of  any  restriction  im- 
posed by  its  charter,  may  take  a  mortgage  to  secure  anticipated  liabili- 
ties, as  well  as  those  existing  at  the  time ;  but  the  Legislature,  whose 
creation  it  is,  may  impose  such  a  restriction  in  its  charter.     Crocker 
v.  Whitney,  71  N.  Y.  161. 

716.  By  habitually  receiving  special  deposits  to  be  kept  for  mere 
accommodation,  national  banks  incur  liability  for   gross  negligence^ 
Chat,  Nat.  Bank  v.  Schley,  guardian,  58  Ga.  369. 

717.  National  banks,  as  Federal  agencies,  are  only  exempted  from 
State  legislation  so  far  as  it  may  impair  their  efficiency  in  performing 
the  functions  by  which  they  are  designed  to  serve  the  government  of 
the  United  States.     It  is  only  where  a  State  law  incapacitates  them 
from    discharging    these    duties   that    it    becomes    unconstitutional- 
Thomas,  el  al.  v.  Farmer's  Bank  of  Md.,  46  Md.  43. 

718.  To  protect  a  trustee,  who  is  a  stockholder  in  a  national  bank,, 
from  personal  liability,  under  the  provisions  for  such  exemption  in  the 
act  of  Congress  with  regard  to  national  banks,  it  must  appear  on  the 
books  of  the  bank  that  he  was  such  trustee.     Davis  v.  Essex  Baptist 
Society,  44  Conn.  582. 

719.  The  omission  of  the  officer  of  a  national  bank  to  exact  secur- 
ity for  moneys  lent  cannot  be  made  a  ground  of  defence  to  an  action- 
brought  by  the  bank  to  recover  such  loan.      Union  Gold  Mining  Co.  v~ 
Rocky  Mt.  Nat.  Bank,  2  Colorado,  248. 

720.  In  ordering  an  assessment  for  the  payment  of  the  debts  of 
an  insolvent  national  bank,  the  stock  certificates  and  stock  ledger  of 
the  bank  must  be  taken  by  the  comptroller  of  the  currency,  in  the 
absence  of  fraud  or  mistake,  as  showing  who  the  stockholders  were  at 
the  time  of  the  failure  of  the  bank.     Davis  v.  Essex  Baptist  Society, 
44  Conn.  582. 

721.  State  courts  have  jurisdiction  of  suits  brought  by  national 
banks,  it  not  having  been  taken  away  by  section  57,  No.  85,  of  Sts. 
TJ.  S.  1863-64.      First  Nat.  Bank  of  Montpelier  v.  Hubbard,  et  al,  49 
Rowell,  Vt.  1. 

722.  National  banks  are  not  responsible  for  the  safe  keeping  of 
special  deposits  made  according  to  usage,  for  the  accommodation  of 
depositors,  and  with  the  knowledge  and  acquiescence  of  the  bank  di- 
rectors, but  without  profit  to  the  bank — the  receiving  of  such  deposit* 
not  being  authorized  by  the  National  Banking  Act,  under  which  such 
banks  are  organized.      Whitney  v.  First  Nat.  Bank  of  Attleboro\  50 
Yt.  388. 

723.  The  stockholder,  in  subscribing  for  or  in  accepting  the  stockr 
assents  to  becoming  security  to  the  creditors  for  the  payment  of  the 
debts  of  the  bank.     Davis  v.  -Essex  Baptist  Society,  44  Conn.  582. 

724.  A  statute  of  Vermont  is  not  void,  which,  for  the  purpose  of 


OF   STANDARD   DECISIONS.  103 

taxation,  requires,  under  a  penalty  for  his  neglect  or  refusal,  the  cash- 
ier of  each  national  bank  within  the  State  to  transmit,  on  or  before 
the  fifteenth  day  of  April  in  each  year,  to  the  clerks  of  the  several 
towns  in  the  State  in  which  any  stock  or  shareholders  of  such  bank 
shall  reside,  a  true  list  of  the  names  of  such  stock  or  shareholders  on 
the  books  of  such  bank,  together  with  the  amount  of  money  actually 
paid  in  on  each  share  on  the  first  day  of  that  month.  Waite  v. 
Dowley,  94  U.  S.  527. 

725.  The  shares  of  stock  of  a  national  bank  in  New  York  should 
be  assessed  for  taxation  at  their  actual  value.     The  ruling  in  Van  Al- 
len v.  The  Asesssors,  3  Wall.  573,  as  to  the  invalidity  of  the  act  of  the 
Legislature  of  New  York  of  March  9,  1865,  known  as  the  Enabling 
Act,  so  far  as  it  provided  for  the  taxation  of  shares  in  a  national  bank, 
reaffirmed.     People  v.  Commissioners  of  Taxes  and  Assessments,  94  U. 
S.  415. 

726.  DEPOSITORS'  CLAIMS. — The  claims  of  depositors  in  a  national 
bank  at  the  time  of  its  suspension  for  the  amount  of  their  deposits  are, 
when  proved  to  the  satisfaction  of  the  comptroller  of  the  currency, 
placed  upon  the  same  footing  as  if  they  were  reduced  to  judgments. 
National  Bank  of  the  Commonwealth  v.  Mechanics1  National  Bank,  94 
TJ.  S.  437. 

727.  When  a  national  banking  association  is  insolvent,  the  order 
of  the  comptroller  of  the  currency,  declaring  to  what  extent  the  indi- 
vidual liability  of  the  stockholders  shall  be  enforced,  is  conclusive. 
Kennedy  v.  Gibson,  et  aZ.,  8  Wall.  498;  cited  and  approved.     Casey  v. 
Calli,  94  U.  S.  673. 

728.  When  his  order  is  to  collect  an  amount  equal  to  the  full  par 
value  of  the  stock,  the  suit  by  the  receiver  against  the  stockholders 
must  be  at  law,  and  that  amount  will  bear  interest  from  the  date  of 
the  order.     In  such  a  suit  the  stockholder  is  estopped  from  denying 
the  existence  or  the  validity  of  the  corporation.     Ibid. 

729.  When  authority  of   cashier  of  bank  to  compromise  a  claim 
will  be  presumed.     See  C.  N.  Bank  v.  Kohner,  85  N.  Y.  189. 

730.  No  authority  other  than  that  conferred  by  Congress  is  re- 
quired to  enable  a  bank  existing  under  a  special  or  a  general  State  law 
to  become  a  national  banking  association.     The  certificate  of  the  comp- 
troller is  conclusive  as  to  the  completeness  of  the  organization  under 
the  act  of  Congress  in  a  suit  against  a  stockholder  to  enforce  his  lia- 
bility, or  a  party  upon  his  contract  with  the  bank.     Ibid. 

731.  A  plea  is  bad  which  sets  up  that  the  comptroller  has  decided 
to  pay  a  large  amount  of  claims  for  which  the  bank  is  not  responsible, 
and  that,  aside  from  those  claims,  there  are  means  enough  to  meet  the 
just  liabilities  of  the  bank.     Ibid. 

732.  By  an  act  of  Congress  with  regard  to  national  banks,  all 
stockholders  of  such  banks  are  liable  to  assessment  for  the  debts  of 
the  banks  in  case  of  their  insolvency,  to  the  extent  of  the  par  value  of 
their  stock  in  addition  to  the  amount  invested  in  such  stock ;  but  per- 
sons holding  stock  as  executors,  administrators  and  trustees  are  not  to 
be  personally  subject  to  any  liability  as  stockholders,  but  such  liability 
is  to  attach  only  to  the  property  in  their  hands.     W.  died  in  January, 
1871,  being  at  the  time  a  stockholder  of  a  national  bank.     His  estate 
•was  subsequently  settled,  with  a  limitation  for  the  presentation  of 


104  MONROE'S  DIGEST 

claims,  a  settlement  of  the  administration  account,  and  a  final  distri- 
bution. The  bank  failed  December,  1871,  and  a  receiver  was  appointed 
by  the  comptroller  of  the  currency,  and  in  January,  1877,  a  long  time 
after  the  distribution  of  W.'s  estate,  the  comptroller  made  an  assess- 
ment upon  those  who  were  stockholders  at  the  time  of  the  failure  of 
the  bank.  Held,  in  a  suit  brought  by  the  receiver  against  W.'s  admin- 
istrator— 

733.  1.  That  the  stock  was  not  to  be  regarded  as  having  been,  at 
the  time  of  the  failure  of  the  bauk,  the  property  of  the  administrator, 
in  such  a  sense  as  to  constitute  him  the  shareholder  within  the  mean- 
ing of  the  act. 

734.  2.  That  the  provision  of  the  act  exempting  executors,  ad- 
ministrators and  trustees  from  personal  liability  was  not  intended  to 
affect  the  liability  to  assessment  of  estates  in  process  of  settlement, 
but  only  to  prevent  a  personal  liability  from  running  against  persons 
acting  in  a  trust  capacity,  who  had  received  the  stock  for  the  benefit  of 
the  trust  estate. 

735.  3.  That  the  fact  that  the  assets  of  the  estate  of  W.  had  been 
distributed  before  a  demand  was  made  for  the  assessment,  so  that  the 
administrator  had  nothing  in  his  hands,  was  no  reason  why  judgment 
should  be  rendered  against  him,  de  bonis  decedentis. 

736.  4.  That  the  liability  of  W.  was  in  the  nature  of  a  contract, 
and  as  such  was  a  personal  liability,  for  which  his  estate  was  holden  at 
his  death.     Under  the  Connecticut  statute  the  settlement  of  an  admin- 
istration account  and  the  distribution  of  an  estate  does  not  prevent 
the  estate  being  subjected,  if  actually  solvent,  to  the  payment  of  a 
debt  which  accrued  after  the  settlement  of  the  estate.     Davis,  Receiver 
of  Ocean  National  Bank  of  N.  Y.  v.  Weed,  44  Conn.  569. 

737.  A  defendant  sued  by  a  national  bank  for" moneys  it  loaned 
him  cannot  set  up  as  a  bar  that  they  exceeded  in  amount  one-tenth 
part  of  its  capital  stock  actually  paid  in.     Gold  Mining  Co.  v.  National 
Bank,  96  II.  S.  640. 

738.  A  banking  corporation  chartered  under  the  laws  of  this  state 
has  no  power  to  subscribe  for  the  stock  of  a  railroad  corporation. 
Nassau  Bank  v.  Jones,  95  N.  Y.  115. 

739.  The  relations  of  a  bank  with  its  cashier  are  analogous  to 
those  of  a  principal  with  his  agent,  and  the  principles  governing  the 
right  of  disaffirming  unauthorized  acts  of  an  agent  are  applicable  to 
similar  acts  of  a  cashier.     Second  Nat.  Bank  of  Oswego  v.  Burt,  93  N. 
Y.  233. 

740.  An  attachment  issued  against  a  national  bank,  which  is  at 
the  time  insolvent  is  invalid  (U.  S.   R.  S.,  §  5242),  and  is  not  made 
valid  by  the  subsequent  acquisition  bv  the  bank  of  further  capital. 
Eaynor  v.  Pac.  Nat.  Bank,  93  N.  Y.  37"l. 

741.  An  action  in  the  Supreme  Court  against  a  national  bank  need 
not   be  brought  in  the  county  where  the  bank  is  located  but  may  be 
brought  in  any  county  where  the  plaintiff  resides.     Talmage  v.  Third 
Nat. ^ Bank,  91  N.  Y.  531. 

742.  A  bank  by  the  certification  of  a  check  drawn  upon  it,  guaran- 
tees the  genuineness  of  the  signature  of  the  drawer,  represents  that  it 
Las  funds  of  the  drawer  in  its  hands  sufficient  to  meet  it,  and  engages 
that  those  funds  shall  not  be  withdrawn  to  the  prejudice  of  any  bona 


OF   STANDARD   DECISIONS.  105 

Jide  bolder  of  the  check.  The  certification  does  not  impart  that  the 
body  of  the  check  is  genuine,  or  that  the  funds  on  deposit  are  abso- 
lutely applicable  to  the  payment  of  the  precise  check  certified.  Clews 
v.  Bank  of  N.  Y.  Nat.  Banking  Ass.,  89  N.  Y.  418. 

743.  A  cashier  of  a  bank  has,  as  incident  to  his  office,  implied  au- 
thority to  borrow  money  for  it  and,  in  the  absence  of  any  statutory 
restraint,  to  secure  the  loan  by  pledge  of  its  property  or  funds;  and, 
as  regards  third   persons  the  assumption  of  such  authority  by  the 
cashier  will  conclude  the  bank.     Kersey,  as  Assignee,  etc.,  App.  v.  Don- 
nell,  et  al.,  94  N.  Y.  168. 

744.  A  national  bank  may  loan  on  security  of  a  mortgage  if  not 
objected  to  by  the  United  States.     Nat.  Hank  v.  Matthews,  98  U.  S. 


745.  The  illegal  cancellation  of  an  official  bond  will  not  release 
the  sureties  on  the  bond  from  their  liability  for  any  official  delinquency 
of  their  principal.     A.  Rochezeau,  et  al.  v.  Wm.  McJones,  et  al.,  29  La. 
82. 

746.  The  cashier  of  a  bank  is  not,  by  reason  of  his  official  posi- 
tion, presumed  to  have  power  to  bind  it  as  an  accommodation  indorser 
on  his  individual  note,  and  the  payee  who  fails  to  prove  that  the  cash- 
ier, as  such,  had  authority  to  make  the  indorsement,  cannot  recover 
against  the  bank.      West  St.  Louis  Savings  Bank  v.  Shawnee  County 
Bank,  95  U.  S.  557. 

747.  The  provision  of  the  National  Banking  Act  (U.  S.  B.  S., 
•§5219),  providing  that  the  taxation  of  shares  of  stock  of  national 
banks  "  shall  not  be  at  a  greater  rate  than  is  assessed  upon  other  mon- 
eyed capital  in  the  hands  of  individual  citizens "  requires  that  no 
greater  percentage  of  tax  on  the  valuation  of  shares  shall  be  levied ; 
it  does  not  apply  to  an  overvaluation.      Williams  v.  Weaver,  75  N.  Y. 
30. 

748.  Under  the  act  of  Congress,  shares  of  the  stock  of  national 
banks  may  be  taxed,  irrespective  of  the  fact  that  the  capital  of  the 
bank  is  invested  in  United  States  securities.     Ibid. 

749.  A  state  bank  cannot  enforce  against  any  one  an  executory 
contract  which  it  was  not  authorized  by  its  charter  to  make.     Nassau 
Bank  v.  Jones,  95  N.  Y.  115. 

750.  The  assessment  of  bank  shares  is  not  subject  to  a  deduction 
for  the  debts  of  the  owner,  and  a  refusal  to  allow  such  deduction  is  not 
a  violation  of  said  provision  of  the  act  of  Congress  as  to  the  rate  of 
taxation.      Williams  v.  Weaver,  75  Ind.  30. 

751.  Apparent  authority  operates  only  by  way  of  estoppel  and 
takes  the  place  of  real  authority  only  where  some  person  has  acted 
upon  the  appearances.     People  v.  Bank  of  N.  Am.,  75  N.  Y.  548. 

752.  Former  adjudication  is  not  an  estoppel  to  one  not  a  party  to 
the  action.     Springport  \.  Teutonic  Savings  Bank,  75  N.  Y.  397. 

753.  A  corporation,  like  a  natural  person,  may  appear  voluntarily 
by  attorney ;  and  such  appearance  gives  jurisdiction  to  the  same  ex- 
tent as  if  there  was  actual  service  of  process.     In  re  Atty.  Gen.  v. 
Guard.  Mut.  L.  Ins.  Co.,  77  N.  Y.  272. 

754.  By  plaintiff's  charter  (chap.  685,  Laws  of  1870),  it  is  author- 
ized "  to  grant,  bargain,  sell,  buy  or  receive  all  kinds  of  property, 

*     *     *     or  to  hold  the  same  in  trust,  or  otherwise,     *     *     * 


106  MONROE'S  DIGEST 

and  to  advance  moneys,  securities  and  credits  upon  any  property."  In 
an  action  upon  two  promissory  notes  made  by  defendants,  their  answer 
alleged  in  substance  that  plaintiff  carried  on  a  regular  banking  busi- 
ness, keeping  an  office  for  discounts  and  deposits ;  that  the  notes  in 
question  were  discounted  by  it  in  the  course  of  such  business,  and  the 
proceeds  credited  upon  its  books  to  one  of  the  defendants.  Held,  that 
said  provision  of  its  charter  did  not  confer  upon  plaintiff  banking  pow- 
ers, or  authorize  it  to  discount  commercial  paper ;  and,  this  being  pro- 
hibited by  statute  to  any  corporation  not  expressly  incorporated  for 
banking  purposes  (1  R.  S.  600,  §  4 ;  see  also  id.  712,  §§  3,  5),  that  the 
notes  were  void ;  and  that  the  answer  set  up  a  good  defence.  N.  Y. 
8.  L.  and  T.  Co.  v.  Helmer,  77  N.  Y.  64. 

755.  The  charter  of  a  bank  is  a  franchise  which  is  not  taxable  aa 
such,  if  a  price  has  been  paid  for  it,  which  the  legislator  accepted. 
Gordon  v.  Appeal,  Tax  Court,  3  How.  U.  S.  133. 

756.  Bank,  requii'ed  by  charter  to  pay  certain  per  cent,  on  ita 
capital  in  lieu  of  all  other  taxes,  and  authorized  to  hold  bond  for  its 
place  of  business,  and  such  as  may  be  conveyed  to  it  to  secure  its 
debts,  is  exempt  as  to  only  so  much  real  estate  as  is  necessary  for  its 
place  of  business.     Sank  v.  Tennessee,  104  U.  S.  493. 

757.  Title  deeds  being  deposited  with  bank  to  secure  indebtedness- 
which  is  paid,  and  later  another  debt  incurred,  bank  cannot  claim  an 
equitable  mortgage  to  secure  later  debt.     Biebinger  v.    Continental 
Bank,  99  U.  S.  143. 

758.  The  procuring  by  two  or  more  directors  of  the  declaration  of 
a  dividend  at  a  time  when  there  are  profits  to  pay  it,  is  not  a  willful 
misapplication    of    money    of    bank    within     section    5204    Revised 
Statutes.      United  States  v.  Britton,  108  U.  S.  199. 

759.  Nor  is  president  liable  for  a  criminal  violation  of  that  section 
solely  by  reason  of  permitting  a  depositor  who  is  largely  indebted  to- 
the  bank  to  withdraw  his  deposit  without  first  paying  such  indebted- 
ness.    Ibid. 

760.  A  bank,  in  voluntary  liquidation  under  section  5220  of  Re- 
vised Statutes  is  not  thereby  dissolved  as  a  corporation,  but  may  sue 
and  be  sued  by  its  corporate  name.     National  Bank  v.  In-s.  Co.,  104 
U.  S.  54. 

761.  In  an  action  upon  a  promissory  note  of  $2,400,  it  appeared 
that  the  note  was  indorsed  by  defendant  W.  for  the  accommodation  of 
the  makers,  of  which  fact  plaintiff  had  notice.     The  note  was  delivered 
by  the  makers  to  plaintiff 's  cashier,  who  indorsed  it,  and  at  their  re- 
quest procured  it  to  be  discounted  by  another  bank,  plaintiff  receiving 
a  compensation  for  procuring  the  discount.     On,  or  prior  to,  the  day 
the  note  fell  due,  the  makers  delivered  to  plaintiff  another  note,  being^ 
one  of  several  indorsed  by  W.,  and  delivered  to  the  makers  to  take  up 
the  note  in  suit,  and  other  notes  previously  indorsed  by  him  ;  plaint- 
iff's cashier  was  directed  to  apply  the  proceeds  to  take  up  the  paper 
so  indorsed.     It  did  not  appear  that  this  direction  was  revoked.     The 
proceeds   were    credited   to  the   makers.      It    did    not   appear   that 
plaintiff,  at  that  time,  held  any  paper  so  indorsed  by  W.,save  the  note 
in  suit,  which  it  had  taken  up.     A  few  days  after,  the  makers  drew  a 
check  on, and  delivered  it  to  plaintiff  for  $2,731.62,  payable  to  "  notes,, 
etc.,  or  bearer."     No  money  was  paid  the  drawers  thereon,  and  it  did. 


OF  STANDARD   DECISIONS.  10(T 

not  appear  that  the  proceeds  of  the  note  had  been  drawn  out.  Heldr 
that  the  plain  inference  from  the  transaction  was  that  the  check  was 
given  to  pay  the  note  in  suit,  and  that  it  was  paid  thereby  ;  and  that, 
in  the  absence  of  any  proof  rebutting  this  presumption,  a  finding  of 
non-payment  was  error.  National  Bank  of  Gloversville  v.  Wells,  79 
N.  Y.  498. 

762.  It  seems,  that  a  national  bank  has  no  power  to  loan  its  credit 
and  become  an  accommodation  indorser  of  a  promissory  note.     National 
Sank  of  Gloversville  v.  Wells,  79  N.  Y.  498. 

763.  The  fort3'-first  section  of  the  National  Banking  Act  of  June 
3d,  1864 — which  in  effect  provided  that  all  shares  in  such  banks,  held 
by  any  person  or  body  corporate,  may  be  included  in  the  valuation  of 
the  personal  property  of  such  person  or  corporation  in  the  assessment- 
of  taxes    imposed   under   state    authority,  at   the   place   where   the 
bank  is  located,  and  not  elsewhere.     Tappan,  Collector  v.  Merchants' 
Nat.  Bank,   19  Wall.  U.  S.  490. 

764.  Though  the  stock  of  a  bank  be  altogether  owned  by  a  Stater 
if  the  bank  is  insolvent  its  assets  cannot  be  appropriated  by  legislative 
act  or  otherwise  to  pay  the  debts  of  the  State,  as  distinguished  from 
the  debts  of  the  bank.     Those  assets  are  a  trust  fund  first  applicable 
to  the  payment  of  the  debts  of  the  bank.     Barrings  v.  Dabney,  19 
Wall.  U.  S.  1. 

765.  Although  a  bank,  on  the  expiration  of  its  charter,  or  the 
trustees  who  liquidate  its  affairs,  may  be  deprived  by  statute,  of  power 
to  take  or  hold  real  estate,  this  does  not  prevent  either's  making  an 
arrangement  through  the  medium  of  a  trustee,  by  which,  without  ever 
paving  a  legal  title,  control,  or  ownership  of  such  estate,  and  have 
the  estate  sold  so  as  to  pay  the  debt.     Zantzingers  v.  Gunton,  19  Wall. 
U.  S.  32. 

766.  Money  collected   by  one  bank  for  another,  placed  by  the 
collecting   bank  with  the  bulk  of  its  ordinary  banking   funds,  and 
credited  to  the  transmitting  bank  in  account,  becomes  the  money  of 
the  former.     Hence,  any  depreciation  in  the  specific  bank  bills  received 
by  the  collecting  bank,  which  may  happen  between  the  date  of  the 
collecting   bank's   receiving   them   and   the  bank's  drawing   for  the 
amount  collected,  falls  upon  the  former.     Marine  Bank  v.  Fulton  Bankr 
2  Wall.  U.  S.  252. 

767.  Where  negotiable  paper  is  drawn  to  a  person  by  name,  with 
addition  of  "  cashier  "  to  his  name,  but  with  no  designation  of  the  par- 
ticular bank  of  which  he  was  cashier,  parole  evidence  is  allowable  to 
show  that  he  was  the  cashier  of  a  bank  which  is  plaintiff  in  the  suit  aud 
that  in  taking  the  paper  he  was  acting  as  cashier  and  agent  of  that 
corporation.     Baldwin  v.  Bank  of  Newbury,  1  Wall.  U.  S.  234. 

768.  National  bank  may  be  sued  in  any  state,  county,  or  municipal 
court    in  the  county  or  city  where  located,  having  jurisdiction  in 
similar  cases.      Bank  of  Bethel    v.   Pahquioque  Bank,  14  Wall.   U. 
S.  383. 

769.  National  banks  do  not  cease  corporate  existence  by  mere  de- 
fault in  paying  circulating  notes,  aud  upon  the  mere  appointment  of  a- 
receiver.     Ibid. 

770.  Where .  a  bank  charter  is  forfeited  on  quo  warranto  and  the 
corporation  is  dissolved,  any  surplus  of  assets  above  its  debts,  by 


108  MONROE'S  DIGEST 

general  laws  of  equity,  will  belong  to  the  stockholders.     Lum  v. 
Bobertson,  6  Wall.  U.  S.  277. 

771.  A  delinquent  debtor  cannot  in  such  case  plead  the  judgment 
of  forfeiture  as  against  a  trustee  seeking  to  reduce  his  debt  to  money 
for  the  benefit  of  the  stockholders.     Ibid. 

772.  Although  a  bill  payable  at  a  particular  bank,  to  physically, 
.and  in  point  of  fact,  in  the  bank,  still,  if  the  bank  be  wholly  ignorant 
of  its  being  there — as  when,  ex.  gr.,  a  letter  in  which  the  bill  was 
transmitted  when  brought  from  the  post  office  to  the  bank  has  been 
laid  down  with  other  papers  on   the  cashier's  desk,  and  before  being 
taken  up  or  seen  by  the  cashier  has  slipped  through  a  crack  in  the 
•desk,  and  so  disappeared — the  fact  of  the  bill  being  thus  physically 
present  in  the  bank  does  not  make  a  presentment.     Chicoper  Bank  v. 
Philadelphia  Bank,  80  Wall.  U.  S.  641. 

773.  And  this  is  so,  although  the  acceptor  held  no  funds  then,  did 
not  call  to  pay  the  bill,  and  in  fact  did  not  mean  to  pay  it  anywhere. 
Ibid. 

774.  In  such  a  case,  therefore,  the   holder  cannot  look  to  prior 
parties,  even  though,  by  having  been   informed  after  inquiry  by  him, 
that   the   bill  had  not   been   received   at   the   collecting  bank,   they 
•could  have  inferred  that  it  had  not  been  paid  at  maturity  by  the  ac- 
ceptor.    Ibid. 

775.  Under  the  National  Banking  Act  of  June  3d,  1864,  national 
banks  cannot,  even  by  provisions  framed  with  a  direct  view  to  that 
effect  in  their  articles  of  association  and  by  direct  by-laws,  acquire  a 
lien  on  their  own  stock  held  by  persons  who  are  their  debtors.     Bui- 
lard  v.  Bank,  18  Wall.  U.  S.  589. 

776.  A  by-law  giving  to  a  bank  a  lien  on  stock  of  its  debtors  is 
not  "  a  regulation  of  the  business  of  the  bank  or  a  regulation  for  the 
-conduct  of  its  affairs,"  within  the  meaning  of  the  said  act,  and,  there- 
fore, not  such  a  regulation  as  under  the  said  act,  national  banks  have 
•a  right  to  make.     Ibid. 

777.  Under  the  thirtieth  section  of  the  National  Banking  Act,  na- 
tional banks  may  take  the  rate  of  interest  allowed  by  the  state  to 
natural  persons  generally,  and  a  higher  rate,  if  State  banks  of  issue  are 
-authorized  by  the  laws  of  the  State  to  take  it.      Tiffany  v.  National 
Bank  of  Missouri,  \  8  Wall.  U.  S.  409. 

778.  The  Treasury  Department  has  decided,  on  the  opinion  of  the 
solicitor,  that  national  banks  are  not  responsible  for  the  redemption  of 
their  notes  stolen  before  they  are  signed,  and  put  into  circulation  with 
forged  signatures.     Ibid. 

779.  Under  the  U.  S.   Stat.  of  1864, -c.   106,  §  28,  authorizing  a 
banking  corporation  established  under  the  statute  to  purchase,  hold, 
and  convey  such  real  estate  "  as  it  shall  purchase  at  sales  under  judg- 
ments, decrees,  or  mortgages  held  by  such  associations,  or  shall  pur- 
chase to  secure  debts  due  to  said  association,"  such  corporation  has 
authority  to  purchase  such  real  estate  as  may  be  necessary  in  order  to 
secure  a  debt  due  to  it,  although  in  excess  thereof,  if  the  security  of 
the  debt  is  the  real  object  of  the  purchase.     Upton  v.  Nat.  Bank  of 
South  Beading,  75  Mass.  153. 


OF   STANDARD   DECISIONS.  109 


THE   COURTS  WILL  INTERFERE   WITH   THE   POWERS   OF  DIRECTORS. 

780.  Although  the  court  will  not  interfere  with  the  powers  and 
duties  of  directors  in  their  management  of  the  internal  affairs  of  a 
company,  directors  will  be  restrained  from  fixing  a  particular  date  for 
holding  the  annual  general  meeting  of  the  company  for  the  purpose  of 
preventing  shareholders  from  exercising  their  voting  powers.     Cannon 
v.  Trask,  15  English  Rep.  Moak's  Notes,  539. 

781.  In  adjusting  and  compromising  contested  claims  against  it, 
growing  out  of  a  legitimate  banking  transaction,  a  national  bank  may 
pay  a  larger  sum  than  would  have  been  exacted  in  satisfaction  of 
them,  so  as  to  thereby  obtain  a  transfer  of  stocks  of  railroad  and  other 
corporations,  in  the  honest  belief,  that  by  turning  them  into  money 
under  more  favorable  circumstances  than  then  existed,  a  loss  which 
it  would  otherwise  suffer,  the  transaction  might  be  averted  or  dimin~ 
ished.     So,  also,  it  may  accept   stocks  in  satisfaction  of  a  doubtful 
debt,  with  a  view  to  their  subsequent  sale  or  conversion  into  money  in 
order  to  make  good  or  reduce  an  anticipated  loss.     First  Nat.  Bank  of 
Charlotte  v.  Nat.  Ex.  Sank  of  Baltimore,  (2  Otto)  U.  S.  Repts.  92r 
122. 

782.  Such  transaction  would  not  amount  to  dealing  in  stocks,  and 
they  come  within  the  general  scope  of  the  powers  committed  to  the 
board  of  directors  and  the  officers  and  agents  of  a  national  bank.    Sub- 
ject to  such  restraints  as  its  charter  and  by-laws  impose,  they  may  do- 
in  this  behalf  whatever  natural  persons  can  lawfully  do.      Ibid. 

783.  Dealing  in  stocks  by  a  national  bank  is  not  expressly  pro- 
hibited ;  but  such  a  prohibition  is  implied  from  the  failure  to  grant  the 
power.     Ibid. 

784.  Where  a  question  arises  under  a  Federal  law  and  respects  a 
corporation  created  by  its  authority,  the  rulings  of  the  Federal  courts 
must  be  followed.     Duncomb  v.  N.   Y.  H.  &  No.  E.  E.  Co.,  84  N.  Y. 
190. 

785.  Accordingly  held,  that  the  decision  of  the  United  States  Su- 
preme Court,  in  G.  M.  Co.  v.  Nat.  Bank,  (96  U.  S.  64)  was  conclusive 
here,  holding  that  a  contract  of  loan  made  by  a  national  bank  was 
valid  and  could  be  enforced  although  violative  of  the  provision  of  the 
National  Banking  Act  (U.  S.  R.  S.,  §  5200),  prohibiting  a  loan  to  one 
individual  exceeding  one-tenth  part  of  the  capital  of  the  bank.     Dun- 
comb  v.  N.  Y.  H.  &  No.  E.  E.  Co.,  84  N.  Y.  190. 

786.  When  a  banker  receives  a  negotiable  instrument  for  collec- 
tion, it  is  his  duty  to  cause  it  to  be  presented  for  payment  at  rnaturit}', 
and  if  refused,  protested,  so  as  to  charge  the  indorser.     The  failure  to 
perform   this  duty  will  render  him  liable  for  damages  thereby  occa- 
sioned.    In  an  action  to  recover  for  such  damages  the  solvency  of  the 
indorser  is  a  material  inquiry.     It  is  competent  for  the  defendant  in 
such  action  to  prove  that  the  indorser  was,  and  continues  to  be  in- 
solvent, and  that  therefor  no  damages  were  occasioned  by  the  failure  to 
protest  the  note.     Steele  v.  Eussell,  5  Neb.  211. 

787.  The  doctrine  that  bank  bills  are  a  good  tender,  unless  ob- 
jected to  at  the  time,  on  the  ground  that  they  are  not  money,  only  ap- 
plies to  current  bills,  which  are  redeemed  at  the  counter  of  the  bank  on 


110  MONROE'S  DIGEST 

presentation,  and   pass  at  par  value  in  business  transactions  at  the 
place  where  offered.      Ward  v.  Smith,  7  Wall.  U.  S.  447. 

788.  Stockholders    of   a    bank  whose   charter   binds   them   "re- 
spectively for  all  the  debts  of  the  bank  in  proportion  to  their  stock 
therein"  cannot  be  sued  at  law,  there  being  numerous  other  creditors, 
the  remedy  is  in  equity.     Pollard  v.  Bailey,  20  Wall.  U.  S.  520. 

789.  Rights  or  powers  of  national  banks  are  :  to  exercise  all  such 
incidental  powers  as  are  necessary  to  carry  on  the  business  of  banking, 
by  discounting  and  negotiating  notes,  drafts,  and  bills;  by  receiving 
•deposits;  by  buying  and  selling  exchange,  coin  and  bullion;  by  loan- 
ing money  on  personal  security ;  by  obtaining,  issuing  and  circulating 
notes  according  to  the  provisions  of  the  act  of  Congress. 

790.  When  title  to  bank  stock  not  affected  by  proceedings  under 
confiscation  acts  of  Congress.     See  Chapman  v.  P.  N.  Bank.  85  N.  Y. 
437. 

791.  P  and  K,  a  firm  of  which  defendant  was  a  partner,  executed 
to  a  State  bank  a  written  undertaking  to  be  "  responsible  for  the  pay- 
ment of  any  sum  not  to  exceed  "  $5,000,  which  W  might  require  of 
said   bank  "  for  legitimate  business  purposes."      City  Nat.   Bank  v. 
Phelps,  86  N.  Y.  484. 

792.  The  said  State  bank,  after  loans  had  been  made  to  W,  upon 
the  faith   of  the  guaranty,  abandoned  its  state  organization,  and  was 
recognized  as   a  national   bank,  as   authorized   by  the  act   of  1865. 
(Chap.  97,  Laws  of  1865).     A  portion  of  said  loans  had  not  been  paid, 
new  notes   having   been   given   in   renewal.     In  an  action  upon   the 
guaranty  the  complaint  averred  that  the  guaranty  was  to  the  plaintiff 
instead  of  to  its  predecessor,  the  State  bank.     The  complaint  was  dis- 
missed on  trial. 

793.  It  did  not  appear  that  the  failure  to  sustain  the  complaint  by 
proof,    in  this  respect,  was  made  or  relied  upon  at  the  trial.     Held, 
that  while,  if  the  point  had  been  specifically  taken, and  the  dismissal  had 
been  placed  upon  that  ground,  and  there  had  been  no  motion  made  and 
-denied  for  an  amendment,  the  ruling  might  be  sustained,  it  could  not 
be  presumed  that  the  trial  court  placed  its  decision  upon  a  ground  so 
little  affecting  the  merits.     City  Nat.  Bank  v.  Phelps,  86  N.  Y.  484. 

794.  C  and  B  were  the  trustees  of  an  estate,  B  being  the  acting 
trustee  and  having  the  exclusive  management ;  he  employed  L  as  his 
clerk  and  agent  for  the  collection  of  rent.     Acting  as  such  agent,  L 
received  a  check  for  rent  due  the  estate,  payable  to  the  order  of  B  ; 
this  L  indorsed  payable  to  his  own  order,  signing  the  name  of  B,  per 
himself  as  attorney,  and  then  indorsed  it  "  for  deposit"  with  defendant, 
signing  his  own  name.     He  deposited  the  check  with  defendant,  who 
collected  it  and  placed  it  to  the  credit  of  L,and  the  latter  subsequently 
checked  out  the  same  for  his  own  use.     In  an  action  for  a  conversion 
of  the   check,  held,  that   L  had  no  authority  to  indorse  or  use  the 
<jheck  or  its  proceeds,  and  defendant,  as  against  B  or  the  trustees,  was 
not  authorized  to  collect  and  appropriate  the  proceeds,  and  was  there- 
fore liable.     Robinson  v.  Chemical  Nat.  Bank,  «6  N.  Y.  404. 

795.  Also  held,  that  plaintiffs,  who  were  the  successors  of  C  and 
B,  had  sufficient  title  to  maintain  the  action.     Robinson  v.  Chemical 
Nat.  Bank,  86  N.  Y.  404. 

796.  P.  and  K.,  a  firm  of  which  defendant  was  a  partner,  executed 


OP   STANDARD  DECISIONS.  Ill 

to  a  State  bank  a  written  undertaking  to  be  "  responsible  for  the  pay- 
ment of  any  sum  not  to  exceed  "  $5,000,  which  W.  might  require  of 
said  bank  "  for  legitimate  business  purposes."  The  said  State  bank, 
after  loans  had  been  made  to  W.,  upon  tbe  faith  of  the  guaranty, 
abandoned  its  state  organization,  and  was  reorganized  as  a  national 
bank,  as  authorized  by  the  act  of  1865  (Chap.  97,  Laws  of  1865).  A 
portion  of  said  loans  had  not  been  paid,  new  notes  having  been  given 
in  renewal.  Held,  that  for  whatever  sum  the  defendant  was  bound  to 
the  State  bank,  when  it  was  reorganized,  that  indebtedness  passed  to 
plaintiff;  and,  conceding  that  plaintiff  could  not  renew  without  the 
assent  of  defendant,  or  make  fresh  advances  and  still  hold  him  liable, 
it  had  the  right  to  enforce  the  liability  to  the  State  bank.  City  Nat. 
Bank  v.  Phelps,  86  N.  Y.  484.  See  Savings  Bank. 

797.  A  banker,  who  was  a  director  of  an  insurance  company,  can 
set  off  against  its  demands  for  money  it  deposited  with  him,  bearing 
interest  and  payable  on  call,  the  amount  due  on  its  policies  issued  to 
and    held  by  him.      Seammon  v.  Kimball  Assignee,  (2   Otto)   U.  S. 
Repts.  92,  362. 

798.  The  company  having  been  adjudicated  a  bankrupt,  his  right 
to  such  a  set-off  is  equally  available  against  its  assignee.     Ibid. 

799.  Where  the  charter  of  a  bank  contained  a  provision  binding 
the  individual  property  of  its  stockholders  for  the  ultimate  redemption 
of  its  bills  in  proportion  to  the  number  of  shares  held  by  them  respect- 
ively, the  liability  of  the  stockholders  arises  when  the  bank  refuses  or 
ceases  to  redeem  and  is  notoriously  and  continuously  insolvent.     Lerry 
v.  Lubman,  (2  Otto)  U.  S.  Repts.  92,  156. 

800.  The  fact  that  a  loan  made  by  a  national  bank  is  in  excess  of 
the  limit  allowed  by  law,  cannot  be  used  to  defeat  the  collection  of  the 
loan  by  the  bank.     Mills  Co.  Nat.  Bank  v.  Perry,  72  Iowa,  15. 

801.  The  firm  of  R.  Bros.,  ship  brokers,  having  become  embar- 
rassed in  business  caused  the  moneys  thereafter  received  by  them  in 
their  business  as  agents  for  others,  to  be  deposited  with  defendant  in 
the  name  of  their  bookkeeper,  plaintiff's  intestate,  in  order  to  protect 
such  funds  from  being  attached  by  their  creditors  and  that  they  might 
be  paid  over  to  the  parties  entitled  thereto.     Defendant  having  dis- 
counted a  note  for  said  firm,  when  it  became  due  charged  it  to  said  ac- 
count and  refused  to  pay  over  the  amount  so  deducted  to  plaintiff.     In 
an  action  to  recover  the  amount  so  retained,  held,  that  defendant  was 
not  entitled  to  set  off  the  amount  of  the  note  against  the  deposits,  as 
the  deposits  were  not  the  property  of  R.  Bros.,  but  were  deposited  and 
held  in  trust  for  the  benefit  of  those  for  whom  the  moneys  were  re- 
ceived.    Falkland  v.  St.  N.  National  Bank,  84  N.  Y.  145. 

802.  Also  held,  that  it  was  immaterial  that  none  of  the  parties 
entitled  to  the  deposits  had  made  claim  therefor,  as  they  could  enforce 
their  claims  against  the  plaintiff.     Falkland  v.  St.  N.  National  Bank, 
84  X.  Y.  145. 

803.  Also  held,  that  it  was  immaterial  that  defendant  was  not 
notified  that  said  intestate  so  held  the  funds  in  trust ;  that  the  deposits 
being  in  his  name  he  was  under  no  obligation  to  give  notice  that  others 
had  an  interest  therein.     Falkland  v.  St.  N.  National  Bank,  84  N.  Y. 
145. 

804.  Also  held,  that  the  discharge  of  R.  Bros,  in  bankruptcy  did 


112  MONROE'S  DIGEST 

not  affect  the  rights  of  the  parties  for  whose  benefit  these  deposits 
were  made ;  that  such  discharge,  while  it  might  destroy  the  claims 
against  the  firm,  did  not  deprive  those  for  whom  the  funds  were  de- 
posited of  their  right  thereto.  Falkland  v.  St.  N.  National  Bank,  84 
N.  Y.  145. 

805.  The  L.  &   I.  Co.  by  its  charter  (§  5,  chap.  730,  Laws  of 
1871)  is  authorized  to  "advance  moneys  *  *  *  upon  any  property, 
real  or  personal."     It  discounted  a  note  secured  by  pledge  of  the  bonds 
of  a  railroad  corporation.     Held,  that  conceding  the  discount  was  in 
violation  of  the  provision  of  the  statute  against  unauthorized  banking, 
and  so  the  note  was  void,  the  loan  and  its  security  were  valid  and 
could  be  enforced.     Duncomb  v.  N.  Y.,  H.  &  N.  E.  B.  Co.,  84  N.  Y. 
190. 

806.  When  forged  checks  have  been  paid  by  a  bank,  charged  in 
the  depositor's  account,  and  returned  to  him,  he  owes  no  duty  to  the 
bank  to  so  conduct  an  examination  of  these  vouchers  that  it  will  nec- 
essarily lead  to  a  discovery  of  the  fraud  ;  at  most,  all  that  is  required 
of  the  depositor  is  ordinary  care,  and  if  this  is  exercised  by  him  or  his 
agent,  the  bank  cannot  justly  complain  although  the  forgeries  are  not 
discovered  until  too  late  to  enable  it  to  retrieve  its  position  or  make 
reclamation  from  the  forger.     Frank  v.  Chemical  Nat.  Bank,  84  N. 
Y.  209. 

807.  Where,  therefore,  checks   forged  by  plaintiffs'  confidential 
clerk,  who  filled  out  their  checks  and  had  charge  of  their  bank  account, 
were  paid  by  defendant,  charged  to  plaintiffs  in  their  pass  book,  the 
book  balanced  and  the  checks,  including  those  forged,  returned  to  the 
clerk,  who  assisted  one  of  the  plaintiffs  in  examining  the  account, 
which  examination  was  made  whenever  the  pass  book  was  written  up 
and    vouchers    returned,  and   the   clerk   by   abstracting   the   forged 
vouchers,  and  by  false  balances  and  readings,  prevented  the  forgeries 
from  being  discovered,  held,  that  plaintiffs  were  not  estopped  from 
questioning   the   accuracy  of  the  account ;    and  that  defendant  was 
liable  for  the  balance,  deducting  the  forged  checks.     Frank  v.  Chemi- 
cal Nat.  Bank,  84  N.  Y.  209. 

808.  Where  a  married  woman  is  the  owner  of  stock,  of  a  bank 
located  in  a  state  other  than  that  in  which  she  and  her  husband  are 
domiciled,  the  effect  of  payment,  by  the  bank  to  her  husband,  of  divi- 
dends declared  upon  her  shares  of  stock,  is  to  be  determined  by  the 
law  of  the  place  where  the  bank  is  located,  not  by  the  law  of  the 
owner's   domicile.     Graham  v.  First  Nat.  Bank,  Norfolk,  84  N.  Y. 
393. 

809.  E.,  a  married  woman  domiciled  with  her  husband  in  Mary- 
land, was  the  owner  of  certain  shares  of  stock  of  a  Virginia  bank ;  in 
the  latter  state  the  rule  of  the  common  law  as  to  the  relations  of  hus- 
band and  wife  prevails.     The  husband  was  cashier  of  two  Maryland 
banks,  in  both  of  which  he  was  largely  interested,  and  of  which  he  was 
the   controlling  agent ;  with  these  banks  the  Virginia  bank  had  ac- 
counts kept  in  the  name  of  the  husband  as  cashier ;  by  his  direction  or 
with  his  assent  various  dividends  declared  upon  said  shares  of  stock 
were  paid  to  said  banks  or  credited  in  their  accounts  and  allowed 
them  on  settlement.     In  an  action  by  assignees  of  the  wife  to  recover 
the  dividends,  held,  that  the  evidence  justified  a  finding  of  payment  of 


OF   STANDARD   DECISIONS.  113 

the  dividends  to  the  husband  ;  and  that  such  payment  was  good  as 
against  the  wife  or  her  assignees  and  discharged  defendant's  liability. 
Graham  v.  First  Nat.  Bank,  Norfolk,  84  N.  Y.  393. 

810.  Deposit  by  husband  in  name  of  wife  belongs  to  her.    McGraw 
v.  Tatham,  (Mem.)  84  N.  Y.  677. 

811.  A  check  is  a  bill  of  exchange  within  the  statute  (1  R.  S.  768, 
§  6),  declaring  that  no  person  shall  be  charged  as  acceptor  of  a  bill  of 
exchange  unless  his  acceptance  is  in  writing.     Eidey  v.  Phenix  Bank, 
83  N.  Y.  318. 

812.  A  verbal  promise  by  a  bank  therefore  to  pay  a  check  does 
not  create  a  cause  of  action  thereon.     Risley  v.  Phenix  Bank,  83  N.  Y. 
318. 

813.  Where,  concurrently  with  the  giving  of  a  check  for  a  portion 
of  the  amount  standing  to  the  credit  of  the  drawer  upon  the  books  of 
defendant,  there  was  an  oral  agreement  between  the  drawer  and  payee, 
by  which  the  former,  for  a  valuable  consideration,  agreed  to  assign  so 
much  of  the  indebtedness  of  the  bank  to  him  as  was  represented  by  the 
check,  and  the  check  was  given  to  enable  the  payee  to  collect  and  re- 
ceive the  portion  of  the  debt  assigned,  held,  that  the  check  was  not  the 
contract  between  the  parties,  and  so  did  not  render  oral  evidence  of 
the  agreement  inadmissible ;  and  that  the  parol  assignment  was  suffi- 
cient to  vest  in  the  plaintiff  a  title  to  the  portion  of  the  debt  assigned. 
Eisley  v.  Phenix  Bank,  83  N.  Y.  318. 

814.  Plaintiff  presented  the  check,  and  demanded  payment,  Jan- 
uary 4,  1865,  notifying  defendant  that  so  much  of  the   claim  of  the 
drawer  as  was  represented  by  the  check  had  been  transferred  to  him  ; 
defendant's  president  promised  to  pay  on  presentation  by  some  person 
known  to  the  bank.     On  the  next  day  when  the  check  was  again  pre- 
sented, defendant  refused  to  pay,  on  the  ground  that  on  the  morning  of 
that  day  the  debt  had  been  seized  by  the  United  States,  in  pursuance 
of  proceedings  instituted  on  that  day,  under  the  confiscation  acts  of 
Congress.     These  proceedings  were  set  up  as  a  defence,  and  on  the 
trial  defendant,  to  sustain  the  defence,  offered  in  evidence  the  record  of 
a  District  Court  of  the  United  States,  showing  that  the  deposit  to  the 
credit   of  the  drawer  was  attached  in  proceedings  against  the  estate, 
property,  etc.,  of  the  bank  of  G.  (the  drawer),  on  deposit  with  the  de- 
fendant  on  January   5,    1865,  and  that  defendant  paid   over  to  the 
marshal,  in  pursuance  of  a  decree  of  said  court  in  such  proceedings, 
the  whole  amount  of  the  credit.     The  assignment  to  plaintiff  was  made 
in  May,  1861,  before  the  passage  of  the  confiscation  acts.     Held,  that 
the  record  constituted  no  defence,  and  was  properly  excluded  ;  that  if 
notice  to  defendant  was  necessary  to  complete  plaintiffs  title,  sufficient 
notice  was  given  the  day  prior  to  the  seizure  ;  that  the  plaintiff'  was 
not  concluded  by  the  adjudication  of  the  District  Court  to  the  effect 
that  the  property  seized  belonged  to  the  bank  of  G. ;  also  that  the 
District  Court  acquired  no  jurisdiction  under  said  acts  to  proceed  for 
the   forfeiture   of  a   debt   owing  to  a  corporation.     Risley  v.  Phenix 
Bank,  83  N.  Y.  318. 

815.  The  courts  will  take  judicial  notice  of  the  general  course  of 
business   in  a  community,  including  the  universal  practice  of  banks. 
Mer.  Nat.  Bank  \.Hall,  83  N.  Y.  338. 

816.  Under  the  act  of  Congress  of  February  10th,  1868,  and  the 
8 


114  HONBOE'S    DIGEST 

act  of  the  Legislature  of  Pennsylvania  of  March  30th,  1870,  shares  in 
national  banks  may  be  valued  for  taxation  for  county,  school,  munici- 
pal, and  local  purposes,  at  an  amount  above  their  par  value.  Stephen- 
son  v.  The  School  Directors,  23  Wall.  U.  S. 

817.  In  March,    1870,  plaintiffs  drew  their  check   on   defendant 
against  funds  on  deposit,  receiving  its  check  on  the  M.  N.  Bank  for 
the  amount,  payable  to  the  order  of  H,  to  whom  plaintiffs  proposed  to 
loan  the  amount  on  her  bond  and  mortgage.     The  loan  had  been  nego- 
tiated by  B,  plaintiffs'  attorney,  who  had  procured  the  signature  of  H 
to  the  bond  and  mortgage  without  knowledge  on  her  part  of  the  nature 
of  the  instruments.     The  check  was  certified  by  the  M.  N.  Bank,  the 
indorsement  of  H   was  forged  thereto,  it  was  deposited  by  B  with  his 
bankers,  and  was  subsequently  paid  by  the  drawee,  and  the  amount 
charged  to  defendant.     B  procured  the  mortgage  to  be  recorded  and 
sent  the  papers  to  plaintiffs,  who  resided  in  Canada.     B  paid  the  in- 
terest on  the  bond  and  mortgage  until  May,  1876,  when  he  disappeared 
and  the  fraud  was  discovered.     In  an  action  brought  to  open  the  ac- 
counts between  the  parties,  which  had  been  settled,  and  to  recover  the 
amount  of  said  check,  held,  that  in  the  absence  of  evidence  that  the 
certification  of  the  check  was  obtained  by  plaintiffs  or  their  authorized 
agent,  or  that  the  claim  of  defendant  upon  the  M.  N.  Bank  had  been 
barred  by   the  statute  of  limitations  before  notice  of  the  forgery  and 
demand  of  payment,  plaintiffs  were  entitled  to  the  relief  sought ;  that 
the  M.  N.  Bank  having  paid  the  check  on  a  forged  indorsement  was  the 
party  in  default  who  should  sustain  the  ultimate  loss ;  but  inasmuch 
as  from  what  appeared  in  the  case  defendant  was  the  only  party  to 
whom  that  bank  was  liable,  equity  required  it  should  make  good  the 
payment  for  which  it  had  received  credit  and  seek  its  reimbursement 
from  the  M.  N.   Bank.     Thomson  v.  Bank  of  British  N.  Am.,  82  N. 
Y.  1. 

818.  It  seems  that  had  the  plaintiffs  procured  the  certification  of 
the  check,  it  would  have  been  regarded  as  between  them  and  defendant 
as  paid,  and  they  could  not  have  recovered,  their  remedy  being  against 
the  drawee.     Thomson  v.  Bank  of  British  N.  Am.,  82  N.  Y.  1. 

819.  It  seems,  also,  that  had  it  appeared  that  the  delay  of  the 
plaintiffs  in  discovering  and  giving  notice  of  the  forgery  had  caused 
the  defendant's  remedy  over  against  the  M.  N.  Bank  to  be  barred  by 
the  statute  of  limitations,  plaintiffs  would  not  have  been  entitled  to 
have  the  account  opened.      Thomson  v.  Bank  of  British  N.  Am.,  82 
N.  Y.  1. 

820.  The  lapse  of  six  years  is  not  a  bar  to  an  action  to  recover  a 
deposit ;  the  statute  of  limitations  only  begins  to  run  from  the  time 
payment   is  refused.     Thomson  v.  Bank  of  British   N.  Am.,  82  N. 
Y.  1. 

821.  The  firm  of  C.  F.  P.  &  Co.  made  their  promissory  note  pay- 
able to  their  order  and  indorsed  the  same.     L,  one  of  the  firm  and 
also  a  member  of  the  firm  of  J.  S's  Sons,  indorsed  his  own  name  and 
the  name  of  the  latter  firm  thereon  without  their  knowledge  or  consent, 
and  delivered  it  to  a  firm  to  whom  he  was  individually  indebted  to  be 
applied  upon  the  debt,  who  transferred  the  note  to  plaintiff  for  value, 
before  maturity,  plaintiff  having  no  notice  of  the  circumstances  attend- 
ing the  execution  of  the  note.     One  of  the  firm  to  whom  L  transferred 


OF   STANDARD   DECISIONS.  115 

the  note  was  one  of  the  directors  of  the  plaintiff.  In  an  action  upon 
the  note,  held,  that  it  was  not  thereby  made  chargeable  with,  or  af- 
fected by,  his  knowledge  of  the  transaction  ;  that  the  knowledge  ac- 
quired by  him,  not  as  an  officer  of  the  plaintiff  or  while  engaged  in  its 
business,  but  in  an  individual  capacity  could  not  operate  to  its  prej- 
udice ;  nor  was  there  any  presumption  that  he  communicated  it  to 
plaintiff.  At.  State  Bank  v.  Savery,  82  N.  Y.  291. 

822.  The  purchase  of  a  promissory  note  for  a  sum  less  than  its 
face  is  a  discount  thereof  within  the  meaning  of  the  provision  of  the 
Banking  Act  of  this   State  (§   18,  chap.   260,  Laws  of   1838),  which 
authorizes   associations  organized  under  it  to  discount    bills,  notes, 
«tc.     At.  State  Bank  v.  Savery,  82  N.  Y.  291. 

823.  Plaintiff  was  organized  under  said  act.     The  note  in  ques- 
tion was  purchased  by  it  at  a  greater  discount  than  lawful  interest. 
Held,  that  this  did  not  invalidate  its  title ;  that  if  an}7  penalty  was  in- 
curred thereby  (as  to  which  quoere),  it  was  on\y  the  penalty  prescribed 
t>y  the  act  (see  amendment,  chap.  193,  Laws  of  1870)  ;  that  this  was 
not  available  as  a  defence  as  it  was  not  set  up  in  the  answer.     At. 
•State  Bank  v  Savery,  82  N.  Y.  291. 

824.  It  seems  that  it  would  not  have  availed  if  it  had  been 
pleaded.     At.  State  Bank  v.  Savery,  82  N.  Y.  291. 

825.  Also,  held,  that  the  violation  of  the  statute  was  not  a  fact 
Affecting  the  good  faith  of  plaintiff  as  holder  of  the  paper.     At.  State 
Bank  v.  Savery,  82  N.  Y.  291. 

826.  Also,  held,  that  if  the  purchase  of  the  note  was  beyond  the 
ficope  of  plaintiff's  powers  as  defined  by  the  act  under  which  it  was  or- 
ganized, it  would  not  avail  defendants.     At.  State  Bank  v.  Savery,  82 
N.  Y.  291. 

827.  The  Supreme  Court  of  this  State  has  jurisdiction  over  an 
action  ex  contractu  brought  by  a  citizen  of  the  state  against  a  national 
bank  located  in  another  State.     Robinson  v.  Nat.  Bank  of  Newberne, 
81  N.  Y.  385. 

828.  The  provision  of  the  National  Banking  Act  (U.  S.  R.  S.,  § 
5798)  authorizing  suits  against  the  banking  associations  organized 
under  it,  to  be  brought  in  the  court  of  the  county  or  city  of  the  state 
in  which  the  association  is  located,  does  not  have  the  effect  to  deprive 
•other   courts   of  jurisdiction  ;  it   is   permissive,  not   mandatory,   and 
therefore  does  not  limit  the  general  rule  permitting  civil  cases  arising 
under  the  laws  of  the  United  States  to  be  prosecuted  and  determined 
in  the  State  courts,  where  no  exclusive  jurisdiction  has  been  vested  in 
the  Federal  courts,  or  the  State  courts  have  not  been  prohibited  from 
entertaining  jurisdiction.     Robinson  v.   Nat.  Bank  of  Newberne,  81 
N.  Y.  385. 

829.  In  an  action  brought  to  recover  the  amount  of  a  promissory 
note  discounted  Ity  a  national  bank,  it  cannot  be  set  up  by  wa}r  of 
-counterclaim  or  set-off  that  the  .bank,  in  discounting  a  series  of  notes, 
the  proceeds  of  which  were  used  to  pay  other  notes,  knowingly  took  a 
greater  rate  of  interest  than  that  allowed  by  law.     Nat.  Bank  of  Au- 
burn v.  Lewis,  81  N.  Y.  15. 

830.  The  remedy  in  such  case  is  an  action  of  debt  to  recover  back 
the  amount  paid.     Nat.  Bank  of  Auburn  v.  Lewis,  81  N.  Y.  15. 

831.  The  rule   laid  down  in  this  case  upon  a  former  argument 


116  MONROE'S  DIGEST 

(Nat.  Bank  of  A.  v.  Lewis,  75  N.  Y.  516), modified  as  above  in  conform- 
ity with  decision  in  Barnet  v.  Nat.  Bank  (98  U.  S.  [8  Otto]  555), 
which  the  court  hold  to  be  controlling.  Nat.  Bank  of  Auburn  v. 
Lewis,  81  N.  Y.  15. 

832.  Although  State  courts  have  concurrent  jurisdiction  with  the 
Federal  courts  in  actions  by  and  against  national  banks,  in  an  action  in 
a  State  court  the  practice  and  pleadings  prescribed  by  the  Legislature 
of  the  State  in  regard  to  a  counterclaim  or  recoupment  cannot  be  re- 
sorted to,  so  as  to  defeat  the  object  and  intention  of  a  federal  enact- 
ment.    Nat.  Bank  of  Auburn  v.  Lewis,  81  N.  Y.  15. 

833.  The  provision  of  the  U.S.  Statute  (§  914),  providing  that 
the   practice,   pleadings,   forms   and   modes   of  proceedings,  in  civil 
causes,  in  the  Circuit  and  District  Courts,  shall  conform,  as  near  a& 
may  be,  to  those  existing  at  the  time  in  the  courts  of  record  of  the 
State,  has  no  application  in  such  case ;  it  cannot  annul  or  operate  to- 
prevent  the  application  and  enforcement  of  a  statutory  provision  of  a 
penal  character.     Nat.  Bank  of  Auburn  v.    Lewis,  81  N.  Y.  15. 

834.  Where,  however,  a  national  bank,  in  the  discount  of  a  note, 
has  usuriously  reserved  a  sum  greater  than  the  lawful  rate  of  interest,, 
the  amount  so  reserved  is  forfeited  (U.  S.  R.  S.,  §  5198),  and  cannot 
be  recovered  in  an  action  upon  the  note.     Nat.  Bank  of  Auburne  v. 
Lewis,  81  N.  Y.  15. 

835.  In  such  an  action  an  attachment  may  be  issued  against  the 
property  of  the  defendant  in  this  State.     Robinson  v.  Nat  Bank  of 
Newburne,  81  N.  Y.  385. 

836.  The  provision  of  said  act  (§  5242)  prohibiting  the  issuing  of 
an  attachment,  injunction  or  execution  against  such  an  association  or 
its   property  before   final  judgment,   applies   only  to   an   association 
which  has  become  insolvent  or  to  one  about  to  become  so,  as  specified 
in  the  preceding  part  of  the  section.     Bobinson  v.  Nat.  Bank  of  New- 
burne,  81  N.  Y.  385. 

837.  Plaintiff  deposited  with  defendant,  for  collection,  a  note  to 
which  there  was  no  indorser  save  the  maker,  pa}' able  at  the  bank  of 
Lowville,  of  which  bank  the  maker  was  a  customer.     Defendant  sent 
the  note  by  mail  to  that  bank,  which  was  an  ordinary  method  of  trans- 
acting such  business.     The  note  reached  said  bank  the  day  it  fell  due : 
upon  the  next  day  it  sent  its  draft  on  New  York  in  payment,  and  on 
the  same  day  failed.     The  maker  had  not  quite  sufficient  on  deposit  to- 
pay  the  note;  the  deficit  was  made  up  after  the  failure.     Defendant 
received  the  draft  the  next  day,  which  was  Saturday,  after  business 
hours;  he  forwarded  it  on  Monday  morning,  in  the  usual  course  of 
business,  to  the  clearing-house  in  New  York,  and  it  was  returned  "  not 
good."     Defendant  immediately  gave  plaintiff  notice  of  non-payment. 
In  an  action  to  recover  the  amount  of  the  note,  because  of  alleged 
negligence,  held   (Miller,   Earl   and   Danforth   JJ.,  dissenting),  that 
plaintiff  was  properly  non-suited ;  that  as  there  was  no  evidence  that 
the  maker  was  insolvent,  it  did,not  appear  that  plaintiff  sustained  any 
damage  ;  that  the  receipt  of  the  draft  was  not  a  payment,  and  did  not 
discharge  him  from  liability.     Indig  v.  Nat.  City  Bank,  80  N.  Y.  100. 

838.  Also,  held,  by  Rapallo,  Folger  and  Andrews,  JJ.,  (Miller, 
Earl  and  Danforth,  JJ.,  dissenting),  that  by  sending  the  note  to  the 
Bank  of  Lowville  by  mail,  defendant  did  not  constitute  that  bank  its. 


OP   STANDARD  DECISIONS.  »  117 

agent  to  receive  payment,  but  simply  presented  the  draft  through  the 
mail  for  payment ;  that  no  relation  was  created  between  defendant  and 
said  bank  by  presentment  in  this  manner  different  from  what  would 
have  existed  had  the  note  been  sent  through  any  other  agency ;  that  if 
presented  by  a  subagent  the  latter  would  have  been  justified  in  accept- 
ing a  draft  for  the  amount ;  also,  that  there  was  no  negligence  in  for- 
warding the  draft.  Indig  v.  Nat.  City  Bank,  80  N.  Y.  100. 

839.  One  B.  was  in   March,  1874,  cashier  of  defendant,  the  Nat- 
ional Bank  of  Fishkill,  and  its  managing  officer  and  general  agent ;  he 
was  also  plaintiffs  treasurer.     He  took  certain  bonds   belonging  to 
plaintiff  which,  in  the  name  and  as  cashier  and  manager  officer  of  said 
defendant,  he  pledged,  with  various  parties  as  securities  for  loans.     In 
January,  1876,    B.  repossessed  himself  of  the  bonds,  and   returned 
them  to  plaintiff,  but  on  the  thirty -first  of  that  month  again  took  them, 
and  in  the  same  manner  pledged  them  with  W,  and  Me  M.,  a  banking 
firm,  as  security  for  advances  made  and  to  be  made  to  defendant ;  the 
bonds  were  subsequently  sold  pursuant  to  the  conditions  of  the  pledge, 
and  the  proceeds  credited  to  said  defendant.     In  an  action  for  converr 
sion  of  the  bonds,  held,  that  said  defendant  was  liable  ;  that  ignorance 
•on  the  part  of  its  directors  was  not  a  defence,  as,  if  ignorant,  it  was 
because  they  omitted  the  performance  of  official  duty  ;  that  although 
B.  had  no  authority  to  take  the  bonds,  when  he  pledged  them  he  repre- 
sented the  bank,  and  his   knowledge  was  notice  to  it.     Fishkill  Sav- 
ings Inst.  v.  Nat.  Bank  of  F.,  80  N.  Y.  162. 

840.  Also,  held,  that  a  counterclaim  could  not  be  allowed  in  such 
an  action.     Fishkill  Savings  Inst.  v.  Nat.  Bank  of  F.,  80  N.  Y.  162. 

841.  The  term  "  individual  banker,"  in  the  provision  of  the  act  of 
1875,  relating  to  savings  banks  (§  49,  chap.  371,  Laws  of  1875),  which 
declares  it  "  not  to  be  lawful  for  any  bank,  banking  association  or  indi- 
vidual banker  to  advertise  or  put  forth  a  sign  as  a  savings  bank,"  ap- 
plies only  to  one  who  has  availed  himself  of  the  banking  statutes  of  this 
state,  and  has  become  empowered  to  do  banking  thereunder ;  it  does  not 
apply  to  a  private  banker,  who  exercises  in  his  business  no  more  than 
the  risrhts  and  privileges  common  to  all.     People  v.  Doty,  80  N.  Y.  225. 

842.  Defendant  and  one  W  were  engaged  in  conducting  a  banking 
business  in  a  building  owned  by  defendant.     They  were  not  organized 
as  bankers.     Nor  was  either  of  them  authorized  to  do  banking  business 
under  the  banking  laws  of  the  State.     They  did  business  under  the 
name  of  "  The  Farmers'  Bank  of  Batavia."     Defendant  caused  to  be 
placed  in  plain  sight,  on  the  outside  of  the  building,  the  words  "  L. 
Doty's  Savings  Bank."     In  an  action  to  recover  penalties,  under  said 
act  of  1875,  for  putting  "  forth  a  sign  as  a  savings  bank,"  held,  that  de- 
fendant was  not  an  "  individual  banker,"  within  the  meaning  of  said 
act ;  and  that,  therefore,  the  action  was  not  maintainable.     People  v. 
Dohf,  80  N.  Y.  225. 

843.  The  various  banking  acts  expressive  of  the  legislative  intent 
in  the  use  of  the  term  "  individual  banker  "  collated.     People  v.  Doty, 
80  N.  Y.  225. 

844.  It  seems,  that  the  proper  phrase  to  designate  a  banker  doing 
business  without  having  acquired  the  privileges  conferred  by  the  pro- 
visions of  the  statute,  is  "  private  banker,"  not  "  individual  banker." 
People  v.  Doty,  80  N.  Y.  225. 


118  MONBOE'S  DIGEST 

845.  Building  erected  by  bank  on  leased  land  is  real  property  for 
purposes  of  taxation,  and  value  to  be  deducted  from  value  of  shares  in 
assessing  stockholders.     People,  ex  rel.  v.  Comrs.,  Etc.,  80  N.  Y.  573. 

846.  The  power  to  receive  special  deposits  is  incidental  to  the  busi- 
ness of  banking.     Pattison  v.  Syracuse  Nat.  Bank,  80  N.  Y.  82. 

847.  The  enumeration  of  banking  powers  in  the  National  Banking 
Act  is  not  significant  of  an  intention  to  place  any  special  restrictions* 
upon  national  banks  as  distinguished  from  state  banks.     The  enumer- 
ation is  of  the  general,  not  the  incidental  powers.     Pattison  v.  Syra- 
cuse Nat.  Bank,  80  N.  Y.  82. 

848.  National  banks,  therefore,  have  power  to  receive  special  de- 
posits gratuitously  or  otherwise ;  and  when  received  gratuitously,  they 
are  liable  for  their  loss  by  gross  negligence.     Pattison  v.  Syracuse  Nat. 
Bank,  80  N.  Y.  82. 

849.  When  a  national  bank  has  habitually  received  such  deposits,, 
this  liability  attaches  to  a  deposit  received  in  the  usual  way.     Patti- 
son v.  Syracuse  Nat.  Bank,  80  N.  Y.  82. 

850.  The  term  "  special  deposits  "  includes  money,  securities  and 
other  valuables  delivered   to  banks,  to  be  specifically  kept  and  re- 
delivered  ;  it  is  not  confined  to  securities  held  by  the  banks  as  collat- 
eral to  loans.     Pattison  v.  Syracuse  Nat.  Bank,  80  N.  Y.  82. 

851.  In  an  action  to  recover  damages  for  a  special  deposit  alleged 
to  have  been  lost  through  defendant's  gross  negligence,  it  appeared 
that  plaintiff  delivered  to  defendant's  teller,  at  its  bank,  for  safe  keep- 
ing, a  package  containing  certain  bonds.     Defendant  had  been  accus- 
tomed to  receive  for  that  purpose,  packages  supposed  to  contain  se- 
curities and  valuables.     Some  of  these  were  left  by  its  directors.     The 
cashier  of  the  bank  had  the  control  and  management  of  its  affairs.     It 
did  not  appear  that  the  president  took  any  part  in  its  management  orr 
that  the  directors  held  any  meetings.     The  teller  sometimes  acted  as* 
cashier  in  his  absence.     Some  time  before  the  deposit,  the  cashier  said 
something  to  the  teller  as  to  their  not  taking  any  more  packages  for 
safe  keeping.     The  teller  testified  that  this  was  not  a  positive  instruc- 
tion, but  merely  an  opinion,  and  that  he  did,  after  that,  receive  pack- 
ages.    He  also  testified  that  he  told  plaintiff  when  the  deposit  was* 
made,  that  it  would  be  at  his  own  risk ;  this  was  contradicted  by  plain- 
tiff.    The  teller  also  testified  that  the  cashier  sometimes  told  persons- 
depositing  packages  that  they  would  be  at  their  own  risk,  and  at  other 
occasions  packages  were  received  without  $uch  notice.     The  package 
so  left  by  plaintiff  was  kept  in  defendant's  bank  for  about  two  years  be- 
fore its  loss,  being  occasionally  taken  out  by  him  to  cut  off  coupons,  and 
then  returned.     Held,  that  the  evidence  justified  the  submission  to  the 
jury  of  the  question  of  the  authority  of  the  teller,  and  whether  the  d'e- 
posit  was  with  the  bank ;  and,  this  having  been  found,  that  defendant 
was  bound  to  return  the  bonds  when  demanded,  or  to  show  some  suffi- 
cient ground  for  not  doing  so.     Pattison  v.  Syracuse  Nat.  Bank,  80  N.  Y. 
82. 

852.  There  was  no  direct  explanation  of  the  manner  of  the  lossr 
but  the  evidence  tended  to  show  that  the  bonds  were  stolen  in  the  day 
time,  when  the  bank  was  open.     They  were  kept  in  a  safe,  so  placed  as 
to  be  accessible  to  any  person  entering  the  bank  from  the  street,  while 
those  in  the  bank  were  so  placed  that  at  times  the  safe  was  not  in  their 


OF  STANDARD  DECISIONS.  119 

view,  and  sometimes  the  door  of  the  safe  was  left  open.  Held,  that  the 
evidence  authorized  a  finding,  that  the  bonds  were  stolen  by  some  one 
coming  in  from  the  street ;  and  that  leaving  the  property  thus  exposed 
was  gross  negligence.  Pattison  v.  Syracuse  Nat.  Bank,  80  N.  Y.  82. 

853.  Also,  held,  that  the  fact  that  property  of  the  bank  was  stolen 
from  the  same  place,  at  the  same  time,  was  not  conclusive  against  the 
charge  of  gross  negligence.    Pattison  v.  Syracuse  Nat.  Bank,  80  N.  Y.  82. 

854.  As  to  whether,  assuming  the  receipt  of  special  deposits  to 
have  been  beyond  the  legal  power  conferred  upon  defendant,  yet  having 
in  fact  received  plaintiffs  property  into  its  custody,  it  could  set  up  its 
own  want  of  corporate  power  as  a  defence,  quaere.     Pattison  v.  Syra- 
cuse. Nat.  Bank,  80  N.  Y.  82. 

855.  The  authorities  upon  the  subject  of  the  liability  of  banks  for 
special  deposits  collated.     Pattison  v.  Syracuse  Nat.  Bank,  80  N.  Y.  82. 

856.  The  C.  N.  Bank,  having  received  from  a  customer  of  the 
M.  and  M.  Bank  a  check  upon  that  bank,  sent  it  to  the  drawee  for  pay- 
ment ;  the  M.  and  M.  Bank  charged  the  check  to  the  drawer,  whose  ac- 
count was  then  good  for  the  amount,  and  returned  the  check  to  the 
drawer  as  paid ;  it  sent  to  the  C.  N.  Bank  a  draft  on  a  New  York  bank 
for  the  amount  of  the  check  ;  two  days  after  the  M.  and  M.  Bank 
closed  its  doors  and  a  receiver  of  its  assets  was  appointed  ;  the  draft 
was  not  paid.     On  application  by  the  C.  N.  Bank  for  an  order  requiring 
the  receiver  to  pay  the  amount  of  the  check,  upon  the  ground  that  the 
assets  came  to  the  hands  of  the  receiver  impressed  with  a  trust  in  favor 
of  the  C.  N.  Bank,  held,  that  the  order  was  properly  denied;  that  in 
order  to  authorize  the  relief  prayed  for  it  was  necessary  to  trace  into 
the  hands  of  the  receiver  money  or  property  which  belonged  to  the 
C.  N.  Bank,  or  which  had,  before  the  receivership,  been  set  apart  and 
appropriated  to  the  payment  of  the  check  ;  that  charging  said  check 
and  returning  it  to  the  drawer  did  not  amount  to  a  payment  and  set- 
ting apart  of  sufficient  of  the  drawer's  deposit  to  cover  it,  nor  did  it 
impress  a  special  trust  on  any  part  of  the  drawer's  assets  ;  but  by  the 
transaction  the  drawee  simply  reduced  its  indebtedness  to  its  deposi- 
tor to  the  amount  of  the  check,  and  constituted  itself  a  debtor  to  the 
holder  to  a  corresponding  amount.     People  v.  Mer.  and  Nech.  Bank. 
78  N.  Y.  269. 

857.  Defendant,  as  collateral  security  for  a  loan  made  to  him  by  a 
bank,  delivered  to  it  certain  securities,  which  were  taken  and  converted 
by  B.,  the  president  of  the  bank.     In  an  action  by  the  receiver  of  the 
bank  to  recover  the  amount  loaned  it  appeared  and  was  found  that  the 
trustees  of  the  bank  left  the  entire  management  of  it  with  B.  and  one 
O.,  who  was  styled  "  manager  ;  "  that  the  trustees  took  the  statement 
of  B.  without  question  or  examination  ;  that  the  securities  were  taken 
without  objection  on  the  part  of  the  trustees  or  officers  ;  that  no  meet- 
ings of  the  trustees  were  held  pursuant  to  the  by-laws,  or  examination 
made  by  them  of  the  securities,  and  they  exercised  no  care  or  vigilance 
in  regard  to  them  ;  also,  that  B.  had  been  in  the  habit  of  abstracting 
securities  and  using  them  in  his  private  business,  most  of  them  being 
returned  when  called  for ;  that  0.  had  knowledge  of  this  habit  and 
took  no  means  to  prevent  it,  or  to  notify  the  trustees.     Held,  that  the 
bank  was  chargeable  with  negligence,  and  defendant  was  entitled  to 
counterclaim  the  value  of  the  securities;  that  the  bailment  was  for 


120  MONROE'S  DIGEST 

mutual  benefit,  and  in  such  case  the  bailee  was  bound  at  least  to  exer- 
cise ordinary  care ;  also,  that  the  bank  was  under  an  implied  obligation 
by  the  transaction  to  return  the  securities  when  the  debt  was  paid  ; 
that  the  failure  to  do  so  rendered  it  presumptively  liable,  and  the  onus 
was  upon  it  to  relieve  itself  from  that ;  also,  held,  that  the  bank  was 
not  excused,  by  the  fact  that  B.  having  access  to  the  securities  might 
have  abstracted  them  secretly,  although  the  utmost  vigilance  had  been 
used,  as  the  point  was  whether  care  or  diligence  would  have  prevented 
what  was  actual^  done.  Cutting  v.  Marlor,  78  N.  Y.  454. 

858.  Defendant   and  others  executed  a  bond,  by  the  terms  of  which 
•each  one  severally  obligated  himself  to  pay  a  separate  and  specified 
:sum  to  the  Third  Avenue  Savings  Bank,  on  the  1st  day  of  January, 
1883,  "  or  six  months  after  a  demand  therefor."     When  the  bond  was 
:given  the  assets  of  the  bank  had  become  impaired,  and  the  bond  was 
•executed  for  the  purpose  of  being  exhibited  to  the  bank  department  as 
an  asset,  so  that  the  bank  might  pass  examination  and  be  enabled  to 
continue  its  business.     Hurd  v.  Kelly,  78  N.  Y.  588. 

859.  In  an  action   by  a  receiver  of  the  bank  upon  the  bond,  held, 
that  the  intent  to  be  gleaned  from  the  language  of  the  bond  was  to 
fix  the  day  specified  as  the  date  when  the  obligation  should  mature,  in 
the  absence  of  any  prior  demand,  and  to  enable  the  bank  to  accelerate 
the  time  of  payment  by  a  six  months'  demand  ;  that  the  circumstances, 
under  which  the  bond  was  given,  confirm  this  construction  ;  and  that, 
therefore,  an  action  brought  before  the  day  specified,  but  six  months 
after  demand,  was  not  premature.     Hurd  v.  Kelly,  78  N.  Y.  588. 

860.  The  consideration  expressed  in  the  bond  was  that  said  bank, 
upon  the  request  of  each  of  the  obligors,  continues  its  business  after 
January  15th,  1873,  and  of   the  mutual  convenants  contained  therein. 
The  bank  did  continue  in  business  after  the  time  specified  and  until 
December,  1875,  when  plaintiff  was  appointed   receiver.     Held,  that 
the  continuance  in  business,  and  the  incurring  of  new  obligations  in- 
cident thereto,  was  a  good  consideration.     Hurd  v.  Kelly,  78  N.  Y. 
588. 

861.  Also,  held,  that  the  transaction  was  not  in  violation  of  public 
policjT,  and  even  if  it  was  ultra  vires,  that  objection  could  not  prevail 
as  against  the  claims  of  depositors  who  are  represented  by  the  receiver. 
Hurd  v.  Kelly,  78  N.  Y.  588. 

862.  What  are  proper  allowances  on  settlement  of  accounts  of  re- 
•ceiver  of  insolvent  savings  bank.     In  re  G.  Sav.  Institution,  78  N.  Y. 
408. 

863.  Bank  stock  assessed  under  the  provisions  of  the  act  author- 
izing the  taxation  of  stockholders  of  banks  (Chap.  761,  Laws  of  1866), 
it  is  the  duty  ot  the  assessor  to  deduct  from  the  actual  value  of  each 
share,  a  sum  bearing  the  same  proportion  thereto  as  the  annexed  value 
of  all  the  capital  stock ;  the  words  "  whole  amount   of  the   capital 
stock,"  as  used  in  said  act,  has  reference  to  its  value,  not  to  the  nom- 
inal amount  of  capital.     People,  ex  rel.  v.  OomV's  of  Taxes,  69  N.  Y. 
91. 

864.  Article  13  of  the  State  constitution,  entitled  "  Banks  and 
currency,"  applies  to  banks  of  issue,  and  does  not  prohibit  the  Legisla- 
ture from  creating  banks  of  deposit  and  discount.     When  an  incorpo- 
ration, attempted  in  good  faith  under  a  general  incorporation  law,  by 


OF   STANDARD   DECISIONS.  121 

the  requisite  number  of  corporators,  will  be  deemed   a   corporation 
de  facto.     Pape,\.  Capital  Bank,  20  Kansas,  440. 

865.  When  a  bank  has  become  involved  and  under  the  general 
laws  it  is  sought  to  make  the  directors  and  stockholders  liable  for  its 
debts,  proceedings  must  be  in  the  name  of  the   assignee,  and  in  the 
Court  of  Common  Pleas  of  the  County  in  which  the  bank  is  located. 
The  liability  of  the  stockholders  being  secondary  cannot  be  enforced 
until  the  assets  of  the  bank,  which  is  the  primary  debtor,  are  exhausted. 
Mean's  Appeal,  85  Penn.  St.  75. 

866.  The  stockholder  of  a  national  bank   has   legal   capacity  to 
sue  such  corporation  for  misappropriation  of  the  stockholder's  funds, 
and  for  other  causes.     A  corporation  being  a  legal  entity,  as  such, 
distinct  from  its  members,  incorporators,  or  stockholders,  it  follows 
that  each  or  all  of  them  may  have  grievances  redressed  by  actions  at 
law  or  proceedings  in  chancery,  as  any  creditor  not  occup}Ting  that  re- 
lation.     Wilson  v.  First  National  Bank,  1  Wyoming,  S.  C.  Rps.  108. 

867.  Money  paid  to  the  cashier  of  a  bank  for  the  use  and  benefit 
of  the  bank,  is  payment  to  the  bank  itself.     If  such  cashier  misapply 
the  funds  so  received,  the  bank,  as  his  principal,  can  maintain  an  action 
against  him,  but  not  the  person  paying  the  money.     If  the  latter  suffer 
injury  by  reason  of  such  misapplication,  his  remedy  lies  against  the 
bank  and  not  against  its  officer  or  servant.     An  agent  receiving  money 
from  a  third  person  for  his  principal,  if  he  acted  within  the  scope  of 
his  authority,  and  has  the  right  to  receive  such  payment,  is  not  respon- 
sible to  the  third  person ;  payment  to  the  agent  is  payment  to  the 
principal,  who  is  responsible  for  the  default  of  the  agent.     Wilson  v. 
Rogers,  1  Wyoming  Sup.  Ct.  R.  51. 

868.  Under  the  general  power  of  discounting  negotiable   notes, 
granted  by  section  127  of  the  corporation  law  to  savings  associations, 
such  institutions  have  the  power  to  purchase  such  notes.     Pape  v. 
Capital  Bank,  20  Kansas,  440. 

869.  Banks  organized,  prior  to  the  Amendment  of  General  St.  c. 
§  13,  under  the  provisions  of  that  chapter  had  no  power  to  purchase  or 
traffic  in  promissory  notes  as  choses  in  action,  or  as  a  specie  of  per- 
sonal property.     The  power  to  carry  on  the  business  of  banking,  by 
discounting  bills,  notes,  and  other  evidences  of  debt,  is  not  within  the 
meaning  of  that  section,  a  power  to  buy  such  securities,  but  to  loan 
money  thereon,  with  the  right  to  take  lawful  interest  in  advance.     In 
First  National  Bank  of  Rochester  v.  Pierson,  decided  September  21, 1877 
(to  appear  in   24  Minn.),  the  rule  laid  down  in  this  case  was  held  to 
apply  to  national  banks.     Farmer's  and  Mechanic's  Bank  v.  Baldwin, 
23  Minn.  198. 

870.  Under  Section  23,  Chapter  34,  laws  of  1876,  a  private  banker 
is  subject  to  taxation  upon  the  average  amount  of  deposits  made  by 
him  in  his  business.     Knox  v.  Comm'rs  of  Shawnee  Co.,  20  Kansas, 
596. 

871.  I.,  the  president  of  a  national  bank  in  Nebraska  City,  ob- 
tained from  K.,  in  the  city  of  Omaha,  his  (K.'s)  promissory  note  for 
the  sum  of  $2,000,  payable  to  I.  or  order,  and  payable  on  demand,  for 
the  purpose  of  purchasing  stock  in  the  bank  of  which  he  was  president. 
I.  procured  the  note  to  be  discounted  by  his  bank,  and  had  the  pro- 
ceeds thereof  placed  to  his  credit  therein,  and  he  afterwards  drew  the 


122  MONROE'S  DIGEST 

same  out  by  checks  on  the  bank.  None  of  the  officers  of  the  bank, 
except  the  president,  were  aware  of  the  character  of  the  note,  or  that 
it  had  been  given  for  stock,  held  hi  an  action  on  the  note,  that  the  bank 
was  entitled  to  recover.  Kennedy  v.  Otoe  Co.  Nat.  Bank,  1  Neb.  59. 

872.  Like  other  agents,  the  president  of  a  bank  must  act  within 
the  scope  of  his  authority,  in  order  to  bind  his  principal,  unless  hi& 
acts  have  been  ratified.     Ibid. 

873.  The  word  "  discount  "  signifies,  "  The  act  of  buying  a  bill  of 
exchange,  or  promissory  note,  for  a  less  sum  than  that  which  upon  its 
face  is  payable."     Pape  v.  Capital  Bank,  20  Kansas,  451. 

874.  A  bank  may  maintain  an  action  in  its  corporate  name  to  re- 
cover back  a  tax  illegally  assessed  and  collected  against  its  shares  of 
capital  stock,  though  such  stock  stands  in  the  names  of  different  in- 
dividual shareholders.     The  payment  of  the  illegal  portion  of  the  tax 
being  one  for  which  the  shareholders  were  not  responsible.     Kimball 
v.  Corn  Exchange  Nat.  Bank,  1  Bradwell's  111.  App.  R'pts.  209. 

875.  The  banker  having  put  the  mone}'  for  a  check  on  the  counter 
and  the  payee  having  taken  it  up,  the  payment  is  complete  though  the 
counting  is  not  finished.     Chambers  v.  Miller,  C.  vi.  125  ;  13  C.  B.  N. 
S.  12'5,  (Eng.  Com.  Law.) 

876.  A  countiy   banker   receiving   a   check   on   another  country 
banker  in  another  town,  has  until  the  next  day  to  transmit  it  for  pre- 
sentment.    Hare  v.  Henty,  C.  65,  10  C.  B.  N.  S.  65,  (Eng.  Com. Law.) 

877.  A  bank  discounting  a  note  before  its  maturity  is  not  charge- 
able with  the  knowledge  of  illegality  or  want  of  consideration  ac- 
quired by  one  of  its  directors  in  other  than  his  official  capacity ;  such 
director  not  having  acted  with  the  board  in  making  the  discount.     A 
director  offering  a  note  of  which  he  is  owner  to  the  bank  of  which  he 
is  a  director,  for  discount,  is  regarded  in  the  transaction  as  a  stranger, 
and  the  bank  is  not  chargeable  with  the  knowledge  of  such  director 
of  an  infirmity  or  defect  in  the  consideration  of  the  note.     P.  was  a 
member  of  the  firm  of  M.  &  J.  S.  P.,  and  also  a  director  of  the  bank 
of  H.     He  obtained  at  the  bank  the  discount  of  a  note  belonging  to 
the  firm,  which  had  been  got  of  the  maker  by  fraud.     He  had  notice, 
as  a  member  of  the  firm,  of  the  fraud,  before  the  note  was  offei-ed  for 
discount,  but  did  not  communicate  his  knowledge  to  any  of  the  officers 
of  the  bank.     Held,  that  the  knowledge  of  P.  was  not,  constructively, 
notice  to  the  bank.     First  Nat.  Bank  of  Hightstown  \.  Christopher^ 
40  N.  J.  L.  R.  435. 

878.  Persons  who  hold  stock  in  pledge,  the  certificates  of  which 
stand  on  the  books  of  a  national  bank  in  the  name  of  the  pledgee, 
are  in  contemplation  of  the  National  Banking  Act,  stockholders,  and 
so  long  as  they  thus  hold  the  stock  in  pledge,  are  responsible  to  the 
creditors  of  the  bank  in  proportion  to  the  amount  so  held.     But  a  sale 
of  the  stock  under  an  authority  conferred  by  the  terms  of  the  pledge, 
is  not  obnoxious  to  the  charge  of  having  been  done  in  fraud  of  credit- 
ors, although  its  leading  object  and  purpose  may  have  been  on  the 
part   of  the   pledgee   to  avoid   liability   as   a   stockholder,  under  the 
twelfth  section  of  the  National  Banking  Act,  which  provides  for  the 
personal  liabilit}7  of  stockholders  of  national  banks  for  the  debts  of  the 
corporation,  in   proportion  to  the  amount  of  stock  held  by  them,  and 
enacts  that  every  person  becoming  a  shareholder  by  transfer,  shall  sue- 


OF   STANDARD   DECISIONS.  123 

ceed  to  all  the  rights  and  liabilities  of  the  prior  holder  of  such  shares. 
Magruder  Receiver  v.  Colston,  et.  aL,  44  Md.  349. 

879.  The   provisions   of  the  act   of  1875,  in   relation   to  savings 
banks  (§  48,  chap.  371,  Laws  of  1875),  providing  that  savings  banks 
shall  have  a  preference  for  moneys  deposited  over  other  creditors  of  an 
insolvent  bank,  only  applies  to  deposits  made  in  the  ordinary  course 
of  business,  and  subject  to  the  drafts  of  the  depositors,  to  an  amount 
not   exceeding   that   authorized   by   section   27   of  said  act.      Loansr 
whether  on  time  or  payable  on  call,  are  not  deposits  within  the  mean- 
ing of  said  provisions.     A  loan  cannot  be  changed  into  a  deposit  by 
reason  of  any  want  of  authority  in  the  managers  of  the  savings  bank 
to  make  the  loan,  or  for  the  reason  that  it  may  have  been  made  in  vio- 
lation of  law.     Rosenback  v.  M.  &.  B.  Bank,  69  N.  Y.  358. 

880.  A  national  bank  has  corporate  power  to  enter  into  an  agree- 
ment with  a  customer  to  exchange  for  him  non-registered  U.  S.  bonds- 
for  registered  bonds,  and  it  is  bound  by  an  agreement  to  that  effect 
made  for  a  sufficient  consideration  by  its  cashier.     Yerkes  v.  National 
Bank,  69  N.  Y.  382. 

881.  Where  it  is  sought  to  hold  one  who,  while  president  of  a  bank T 
loaned  moneys  of  the  bank  to  an  irresponsible  person,  liable  for  the 
same  on  the  basis  of  his  representations  to  the  cashier  at  the  time  of 
the  loans  that  he  was  interested  with  the  borrower,  and  would  see  the 
amounts  repaid,  it  is  error  to  permit  the  party  to  testify  whether  he 
ever  regarded  himself  as  liable ;  his  opinion  respecting  his  legal  liabil- 
ity had  no  bearing  on  the  case.     First  National  Bank  of  Sturgis  v, 
Reed,  36  Mich.  263. 

882.  A  bank  president  who,  while  in  general  charge  of  the  busi- 
ness with  the  cashier  under  his  authority,  has  permitted  and  directed 
drawing  of  moneys  from  the  bank  without  security  by  one  known  or 
supposed  to  be  irresponsible,  and  with  whom  he  was  interested  in  the 
business  for  which  the  money  was  obtained,  and  has  requested  the 
cashier  not  to  say  anything  to  the  directors  about  it,  is  held  personally 
liable  to  the  bank  for  the  moneys  thus  paid  out  b}-  him  in  violation  of 
his  trust.     Ibid. 

883.  The'  fact   that  the   moneys   thus   drawn   out   were  by  the 
cashier,  by  direction  and  on  the  authority  of  the  president,  charged  on 
the  books  of  the  bank  to  the  irresponsible  borrower,  would  not  neces- 
sarily determine  the  transaction  as  a  loan  to  him  by  the  bank  ;  but  the 
bank,  in  the  absence  of  any  act   of  ratification  or  acquiescence  on  its 
part,  would  have  a  right,  under  the  circumstances,  to  repudiate  it  as  a 
transaction  witli  the  nominal  borrower,  and  to  insist  on  repayment  by 
its  president.     Ibid. 

884.  And  such  president,  if  he  persuaded  the  cashier  not  to  make 
known  the  facts  to  the  directors,  could  claim  nothing  because  of  the 
cashier's  knowledge ;  that  officer's  silence  might,  under  such  circum- 
stances, make  him  accessor}'  to  the  fraud,  but  could  not  tend  to  excuse 
the  principal.     Ibid. 

885.  The  question  of  the  effect  to  be  given  to  the  long  silence  of 
the  bank  directors  after  the  charge  to  the  nominal  borrower  was  en- 
tered upon  the  bank  books,  is  one  of  ratification,  and  should  be  sub- 
mitted to  the  jury  as  such.      Ibid. 

886.  An  agent's  admissions  made  after  the  fact,  and  entirely  un- 


124  MONROE'S  DIGEST 

connected  with  any  act  of  agency,  are  not  evidence  of  the    fact 
Bowen  v.  School  District,  etc.,  36  Mich.  1. 

887.  Proof  that  a  person  is  clerk  for  another  does  not  establish 
his  right  to  receive  for  his  employer  payment  of  demands  not  shown 
to  have  any  connection  with  the  business ;  and  evidence  simply  that 
payment  was  made  to  such  clerk  of  such  demands,  is  not  a  sufficient 
showing  of  agency  to  receive  the  same,  to  authorize  evidence  of  ad- 
missions by  such  clerk  of  the  payment  thereof  to  him.     Ibid. 

888.  The  Third  National  Bank  of  Baltimore  was  organized  under 
the  National  Currency  Act  of  1864,  ch.  106.     The  firm  of  W.  A.  B. 
&  Co.,  of  which  W.  A.  B.  was  the  senior  member,  was  a  large  custo- 
mer of  the  bank  through  which  all  the  banking  business  of  the  firm, 
was  transacted,  and  from  which  it  received  accommodations  as  needed. 
On  the  5th  day  of  February,  1866,  the  firm  was  indebted  to  the  bank 
about  $5,000,  when  the  appellee  voluntarily  proposed  to  the  president 
of  the  bank,  to  deposit  with  the  bank  a  large  amount  of  bonds,  about 
$37.000,  as  collateral  security  for  his  present  and  further  indebtedness. 
The  terms  of  the  deposit  as  agreed  on  between  M.  Boyd  and  the  presi- 
dent, were  dictated  by  the  latter  to  the  discount  clerk — and  were  as 
follows:     Third   National   Bank,    February   5th,    1866.     William  A. 
Boyd  has  deposited  with  the  Third  National  Bank  of  Baltimore,  $20,- 
000  in  United  States  5-20  bonds,  and  $1,500  5-20  July,  1865  ;  $5,000 
Hudson  County,  New  Jersey  ;  $5,000  Town  of  Saratoga,  New  York,  7 
per  cent,  bonds  ;  $5,000  Stock  of  Third  National  Bank  of  Baltimore,  as 
collateral  security  for  the  payment  of  all  obligations  of  Wm.  A.  Boyd 
and  Wm.  A.  Boyd  &  Co.,  to  the  Third  National  Bank  of  Baltimore,  at 

present  existing,  or  that  may  be  incurred  hereafter,  with  the  under- 
standing that  the  right  to  sell  the  above  collaterals  in  satisfaction  of 
such  obligations,  is  hereby  vested  in  the  officers  of  the  Third  National 
Bank.  (Signed)  A.  H.  Barnitz,  "Discount  Clerk."  "  The  firm  was 
not  indebted  to  the  bank  subsequent  to  July,  1872,  when  it  paid  its 
last  indebtedness  the  bonds  were  not  withdrawn,  but  left  with  the  de- 
fendant, under  the  original  agreement.  The  bank  was  robbed  and  the 
bonds  stolen  in  the  manner  described  in  the  testimony,  between  Satur- 
day evening  the  17th,  and  Monday  morning  the  19th  of  August,  1872  ; 
the  bank  was  entered  by  burglars  and  certain  of  the  bonds  were  stolen. 

889.  By  section  8  of  the  Act  of  Congress  of  1864,  ch.  106,  a  bank 
organized  thereunder,  is  authorized   to  exercise  all  such   incidental 
powers  as  shall  be  necessary  to  carry  on  the  business  of  banking,  by 
discounting    promissory  notes,  drafts,   bills   of  exchange   and   other 
evidences  of  debt ;  by  receiving  deposits,  by  buying  and  selling  ex- 
change, coin  and  bullion  ;  by  loaning  money  on  personal  security,  and 
by  obtaining,  issuing  and   circulating  notes    according   to   the   pro- 
visions of  this  Act."     In  an  action  by  W.  A.  B.  against  the  bank,  to 
recover  the  value  of  the  bonds  which   were   stolen,  it  was  held,  1st, 
That  the  contract  entered  into  by  the  bank  was  not  a  mere  gratuitous 
bailment.     2d,   That  the  bank   had  the  power  to  enter  into  the  con- 
tract, it  being  within  the  terms  of  the  Act  of  Congress.     3d,  That  the 
original  contract  of  bailment   being  valid  and  binding,  the  obligation 
of  the  bank  for  the  safe  custody  of  the  deposit  did  not  cease  when  the 
plaintiff's  debt  had  been  paid.     4th,  That  the  defendant  was  responsible 
if  the  bonds  were  stolen  in  consequence  of  its  failure  to  exercise  such 


OF   STANDARD   DECISIONS.  125- 

care  and  diligence  in  their  custody  or  keeping  as  at  the  time,  banks  of 
common  prudence  in  like  situation  and  business,  usually  bestowed  in 
the  custody  and  keeping  of  similar  property  belonging  to  themselves;  that 
the  care  and  diligence  ought  to  have  been  such  as  was  properly  adapted 
to  the  preservation  and  protection  of  the  property,  and  should  have 
been  proportioned  to  the  consequences  likely  to  arise  from  any  im- 
providence on  the  part  of  the  defendant.  5th,  That  the  proper 
measure  of  damages  was  the  market  value  of  the  bonds  at  the  time 
they  were  stolen.  Whether  due  care  and  diligence  have  been  exer- 
cised by  a  bank  in  the  custody  of  bonds  deposited  with  it  as  collateral 
security,  is  a  question  of  fact  exclusively  within  the  province  of  the 
jury  to  decide.  Third  National  Bank  v.  Boyd,  44  Md.  47. 

890.  One  dealing  with  a  corporation  in  matters  not  falling  within 
the  purview  of  its  delegated  powers,  is  not  thereby  estopped  from 
pleading    its   want   of  authority,   to    make   the   contract   sought    to 
be    enforced    against    him.     Marion    Savings   Bank   v.    Dunkin,  54 
Ala.  471. 

891.  Where,  however,  the  contract  is  within  the  delegated  powersr 
one  who  has  dealt  with  it  in  its  corporate  character,  is  in  general 
estopped  from  setting  up  its  want  of  complete  organization,  according 
to  the  provisions  of  its  charter,  to  defeat  the  corporation  in  the  en- 
forcement of  the  contract  he  has  made  with  it.     Ibid. 

892.  The  accommodation  drawee  of  a  bill  of  exchange,  which  was- 
discounted  by  a  bank,  for  the  acceptor  who  procured  it  to  raise  money 
for  his  own  use  in  that  way — the  drawer  not  being  aware  of  this  and 
not  being  present  or  participating  in  the  negotiations — is  not  thereby 
estopped  from  denying  the  proper  organization  of  the  banking  corpo- 
ration, when  sued  by  it  on  the  bill.     Ibid. 

893.  Under  the  provisions  of  the  Revised  Code  (Part  2,  Title  lr 
Chapter  1,  §§  1644,  et.  reg.)  as  amended  by  the  Act  of  1868,  "  supple- 
mentary to  the  corporation  laws  of  Alabama,"  a  corporation  is  suffi- 
ciently organized  to  carry  on  the  business  of  a  bank  of  discount  and 
deposit   and    loaning   money,  when    the   certificate  of  the  associates 
(properly  acknowledged  and  recorded)  for  the  purpose  of  carrying  on 
such  banking  business,  shows  the  name  selected  by  the  associates ;  the 
town  where  its  business  is  to  be  conducted ;  the  amount  of  capital 
stock  (within  the  limits  prescribed)  and  the  number  of  shares  into 
which  it  is  divided  ;  the  name  and  place  of  residence  of  th'e  stockholders  -r 
the  shares  held  by  them  respectively,  and  the  time  when  the  association 
is  to  begin  and  terminate.     The  association  not  claiming  the  right  to 
issue  or  circulate  its  own  notes,  no  deposits  of  money  and  transfer  of 
stock  to  the  auditor  (under  §§  1644  and  1646  of  the  Revised  Code)  is 
necessary  to  authorize  it  to  carry  on  other  banking  business.     Marion 
Savings  Bank  v.  Dunkin,  54  Ala.  471. 

894.  The  dissolution  of  a  partnership  with  an  individual  banker 
does  not  relieve  the  retiring  partner  from  liability  for  subsequent  de- 
posits made,  without  notice  of  the  dissolution,  by  one  who  had  been 
before  a  depositor.     Howell  v.  Adams,  68  N.  Y.  314. 

895.  The  liability  of  the  retiring  partner  is  not  changed  by  the 
fact  that  the  depositor  did  not  know  that  he  was  a  partner.     Ibid. 

896.  So  also,  the  alteration  of  a  certificate  of  deposit  in  respect  to- 
the  rate  of  interest,  made  after  the  dissolution  of  the  partnership  by 


126  MONROE'S  DIGEST 

the  partner  continuing  the  business,  but  before  notice  to  the  holder, 
does  not  relieve  the  retiring  partner ;  such  holder  having  the  right 
until  notice,  to  treat  the  partnership  as  continuing,  the  alteration  will 
be  deemed  to  have  been  authorized.  Ibid. 

897.  Proof  of  publication  of  notice  of  dissolution  in  newspapers,  in 
the  place  where  the  bank  was  located,  unconnected  with  any  evidence 
that  the  depositor  resided  there,  or  took  the  papers,  is  but  slight,  if 
.any, evidence  of  notice;  and  when  he  testifies  that  he  never  saw  the 
notice  or  heard  of  the  dissolution  will  not  authorize  a  finding  of  notice. 
Ibid. 

898.  A  bank  is  not  liable  upon  a  cei'tificate  of  deposit  until  after 
demand  of  payment,  and  therefore,  the  statute  of  limitations  does  not 
begin  to  run  against  it  until  demand  is  made.     Ibid. 

899.  Where   a  savings  bank  is  bound  by  its   rules  to  exercise 
its  best  care  to  prevent  fraud,  it  is  not  protected  by  a  clause  in  such 
rules  that  a  payment  to  one  producing  a  deposit  book  shall  be  deemed 
good  and  valid,  in  case  of  a  payment  made  by  it,  merety  upon  the  pro- 
duction of  a  depositor's  book,  to  one  who  has  wrongfully  obtained 
possession   of  and   produces  it  under  circumstances  such   as   would 
necessarily  excite  suspicion  and  inquiry  ;  as  where  the  person  who  pre- 
sents the  book  is  of  a  different  sex  from  the  depositor.     In  the  absence 
of  any  rules  assented  to  by  its  customers  a  savings  bank  is  to  be 
governed  by  the  same  legal  principals  which  apply  to  other  moneyed 
institutions.     Where  it  has  prescribed  rules  to  which  a  depositor  has 
rassented,  they  are  the  agreement  between  them,  and  each  must  con- 
form to  them  to  preserve  rights  against  each  other.     The  by-laws  of 
•defendant's,  a  savings  bank,  which  were  printed  in  its  customers'  de- 
posit book,  contained  the   following  :     "  The   bank  will   use   its  best 
efforts  to  prevent  fraud  ;  but  all  payments  made  to  persons  producing 
the  deposit  books  shall  be  deemed  good  and  valid  payments."     It  was 
.also  worded  that  drafts  might  be   made   personally,  or  by  order  in 
writing  of  the  depositor  if  the  bank  have  his  signature  on  the  signa- 
ture book.     Plaintiff  was  a  depositor,  and  defendant  had  his  signature 
in  such  book.     The  wife  of  plaintiff  wrongfully  obtained  possession  of 
his  deposit  book,  which  she  presented  with  a  forged  check  or  order,  for 
$2,850,  and  this  sum  was  paid  her.     In  an  action  to  recover  the  amount 
the  order  and  the  signature  book  were  produced  on  the  trial.     De- 
fendants' own  officers,  as  witnesses,  stated  that  there  was  a  difference 
between  the  signature  to  the  order,  and  that  in  the  signature  book. 
They  declined  to  charge  that  the  payment  was  valid,  but  left  it  to  the 
jury  to  determine  whether  defendant  used  its  best  efforts  to  prevent 
fraud.     Held,  that  as  this  court  had  not  the  benefit  which  the  trial 
court  had  of  the  inspection  of  the  signatures  it  could  not  say  but  that 
said  court  on  inspection,  discovered  such  a  difference,  as  with  the  other 
circumstances  of  the  case,  authorized  an  inference  of  negligence  and 
made  a  submission  of  the  question  to  the  jury  proper.     Also  held,  that 
a  request  to  charge  that  if  the  defendant  exercised  ordinary  care  and 
diligence,  and  paid  in  good  faith,  it  was  excused,  was  properly  refused, 
as  defendant  had  obligated  itself  to  exercise  more  than  ordinary  care, 
i.  e.,  its  "  best  efforts."     Allen  v.  Williamsburgh  Savings  Bank,  69  N. 
T.  314. 

900.  A  bank  which  has  fraudulently  permitted  funds  on  deposit 


OF  STANDARD  DECISIONS.  127 

belonging  to  a  trust  estate  to  be  transferred  to  the  individual  account 
of  the  trustee,  is  properly  chargeable  with  interest  from  time  of  such 
transfer.  Holden  v.  N.  Y.  and  Erie  Bank,  72  N.  Y.  App.  286. 

901.  A  national  bank,  the  defendant,  had   in   its  house   certain 
United  States  bonds  belonging  to  plaintiff;  its  cashier  in  the  spring  of 
1869,  for  a  sufficient  consideration,  agreed  to  exchange  the  same  for 
registered  bonds.     This  the  bank  neglected  to  do,  and  November,  1869, 
the  bonds  were  stolen.     In  an  action  to  recover  their  value,  held,  that 
defendant  was  liable.      Yerkes  v.  Nat.   Bank   of  Port  Jervis,  69  N. 
Y.  382. 

902.  Where  half  of  bank  note  sent  in  payment,  other  half  to  fol- 
low, title  to  note  remains  in  sender.     The  payment  is  conditional  and 
inchoate,  and  therefore  revocable.     Smith  v.  Munday,  C.  vii.  22  ;  3  E. 
A  E.  22.  (Eng.  Com.  Law.) 


BILLS  OF  EXCHANGE. 

903.  A  bill  of  exchange  specially  indorsed,  "  Pay  J.  C.  or  order 
on  account  of  B.   G.   &   S.,"  was  indorsed  generally  by  J.  C.,  sent  by 
liim  to  his  correspondents,  and    paid  by  the   drawers.     J.   C.  failed 
about  an  hour  before  this  payment  was   made,   in   debt   to  his  cor- 
respondents, and  this  failure  was  known  about  an  hour  after  payment 
made.     His  correspondents  applied  the  amount  of  the  payment  to  re- 
ducing their  claim  against  J.  C.     In  an  action  by  B.  G.  &  S.  against 
these  correspondents  to  recover  the  amount  of  the  payment, — Held, 
that  the  special  indorsement  showed  that  no  consideration  had  been 
paid  for  the  bill  by  J.  C. ;  that  it  was  notice  to  all  subsequent  holders 
that  J.  C.  held  the  bill  in  trust  for  B.,  G.  &  S.  for  collection  ;  that  this 
trust  followed  the  bill,  and  that  neither  J.   C.  nor  his  indorsees  had 
any  property  in  the  bill.     Held,  further,  that  the  defendants,  not  hav- 
ing paid  the  money  over  to  J.  C.  before  hearing  of  his  failure,  could 
not  apply  it  to  reducing  the  debt  owed  them  by  C.     Held,  further,  that 
B.,  G.  &  S.  were  the  real  owners  of  the  bill,  and  as  such  entitled  to  re- 
cover. 

904.  A  general  indorsement-  of  bills  is  prima  facie  evidence  of 
property  in  the  indorsee  :  but  notwithstanding  a  general  indorsement, 
paper  sent  only  for  collection  will  still  remain  the  property  of  the 
sender  as  to  all  persons  having  notice.     Elaine  v.  Bourne,  11  R.  I. 
119;  also  Bank  of  Metropolis  v.   New  England  Bank,  6  How.  U.  S. 
212 ;  Collins  v.  Martin,  1  B.  &  P.  648  ;  Wilson  v.  Smith,  3  How.  U.  S. 
763,  769. 

905.  Acceptance  of  a  bill  of  exchange  in  these  words  :  "  Accepted. 
Payable  after  my  advances  are  paid,"  may  be  explained  by  parol  evi- 
dence, so  far  as  to  show  what  advances  were  meant,  even  including 
future   advances.     A   conditional  acceptance   of  a   bill   of  exchange 
makes  a  new  contract  between  the  payee  and  acceptor,  which  can  be 
•enforced  only  on  averment  and  proof  that  the  condition  has  been  per- 
formed.    Shackelford  v.  Hooper,  54  Miss.  716. 

906.  The    intention  to  assign  a  fund  in  the  hands   of  another, 
founded  upon  sufficient  consideration  and  expressed  by  a  bill  of  ex.- 


128  MONROE'S  DIGEST 

change,  operates  as  an  equitable  assignment  to  the  payee.  A.,  living 
in  this  State,  had  a  certain  fund  to  his  credit  in  the  hands  of  B.  in 
New  York,  and  on  July  30th,  1861,  gave  to  C.,  for  sufficient  considera- 
tion, a  bill  of  exchange  upon  B.  for  the  whole  amount  of  the  fund  ;  the 
bill  of  exchange  was  immediately  indorsed  by  C.  to  D.  (residing  in 
New  York)  and  mailed  to  his  address,  civil  war  between  the  States 
being  then  raging ;  the  bill  of  exchange  was  never  received  by  D.  nor 
had  he  notice  of  it  until  1866,  when  he  was  informed  of  the  remittance 
by  C.,  who  had,  however,  then  forgotten  of  whom  he  had  purchased 
the  bill ;  in  1865,  the  fund  in  the  hands  of  B.  was  collected  of  him  by 
A.,  in  1876,  C.  ascertained,  by  finding  a  memorandum  upon  an  old 
check  book,  that  the  bill  of  exchange  had  been  purchased  from  A. ;  D. 
thereupon,  in  1876,  made  a  demand  upon  A.  for  payment  to  him  of  the 
fund,  which  A.  declined  to  pay,  and  D.  thereupon  instituted  suit 
against  A.  for  the  same.  Held,  that  D.  was  entitled  to  recover.  In 
such  case,  even  if  it  was  negligence  upon  the  part  of  C.  to  have  for- 
warded the  bill  of  exchange  by  mail,  A.  was  contributory  to  it  and 
cannot  take  advantage  of  it.  The  statute  of  limitations  did  not  begin 
to  run  against  D.,  in  such  case,  until  after  the  demand  made  by  him 
upon  A.  in  1876  for  the  amount  of  the  fund.  Kahnweiler  v.  Anderson, 
78  N.  C.  133. 

907.  Although  bills  of  exchange,  drawn  and  accepted  by  the  same 
parties,  may  be  in  strictness  promissory  notes   rather  than  bills,  yet 
where  the  intention  to  give  and  receive  such  documents  as  instruments 
capable  of  being  negotiated  in  the  market  as  bills  of  exchange  is  clear, 
both  the  holders  and  the  parties  may  treat  them  accordingly.     A  cus- 
tom as  to  allowing  a  fixed  precentage  by  way  of  liquidated  damages 
in  lieu  of  exchange,  reexchange,  and  other  charges,  when  the  bills  are 
returned  from  the  colonies  dishonored,  however  valid  in  law,  does  not 
apply  in  the  absence  of  an  agreement,  express  or  implied,  to  allow  re- 
exchange.     When  the  holders  of  bills  drawn  by  P.  L.  &  Co.,  in  Lon- 
don, on  P.  L.  &  Co.,  in  Australia,  having  no  occasion  to  transfer  money 
from  London  to  Australia,  sent  them  to  the  latter  country,  not  for  the 
purpose  of  employing  the  proceeds  there,  but  of  having  them  remitted 
to  London,  the  dishonor  of  such   bills  does  not  entitle  the  holders  ta 
recover  damages  by  way  of  reexchange. 

908.  The  right  to  "  reexchange,11"  in  the  absence  of  express  agree- 
ment, arises  when  the  holder  of  a  bill  who  has  contracted  for  the  trans- 
fer of  funds  from  one  country  to  another  has  sustained  damages  by  its- 
dishonor,  through  having  to  obtain  funds  in  the  country  where  the  bill 
was  payable.     "  Reexchange  "  is  the  measure  of  those  damages      Wil- 
lans  v.  AyerSj  41  Eng.  Law  Reports,  3  Appeal  Cases,  148 — 1878. 

909.  H.  drew  and  indorsed  a  bill  of  exchange  on  A.  for  the  ac- 
commodation of  the  latter,  who  discounted  it  at  a  bank.     Held,  a  re- 
mittitur  by  the  bank  of  a  judgment  on  the  bill  against  A.,  discharged  H, 
from  liability  as  drawer  and  indorser.     Case  v.  Hawkins,  53  Miss.  702, 

910.  In  an  appeal  by  the  indorser  of  a  bill  of  exchange  who  had 
been  condemned  with  the  makers, — Held,  that  to  hold  the  indorser,  de- 
mand of  paj'ment  ought  to  have  been  made  on  the  third  day  of  grace,, 
with  protest  and  notification,  and  that,  even  when  the  bill  was  made 
payable  at  the  residence  of  the  holder  himself.       Knapp,  et  al.  v.  The 
Bank  of  Montreal,  1  L.  C.  R.  253,  Q.  B.  1850  ;  2306  et  seq.  C.  C. 


OF   STANDARD  DECISIONS.  129 

911.  Plaintiff   chartered    defendant's    vessel   for   a   voyage   from 
Charleston  to  Liverpool  or  Havre,  for  a  sum  named ;  bills  of  lading 
were  to  be  signed  by  the  master  but  without  prejudice  to  the  charter. 
It  was  agreed  that  any  difference  between  the  bills  of  lading  and  the 
charter-party  was  to  be  settled  at  Charleston  before  the  vessel  sailed, 
in  accordance  with  the  rates  of  freight,  weight,  etc.,  expressed  in  the 
bills  of  lading,  if  in  the  charterer's  favor, "  by  the  captain's  bill,  payable 
ten  days  after  arrival  at  the  port  of  discharge."     Plaintiff  furnished  a 
cargo  of  cotton  consigned  to  Liverpool.     By  the  custom  at  that  port, 
which  was  well  known  to  plaintiff  and  the  master,  freight  is  only  col- 
lectible on  net  weight  of  cotton.     Plaintiff  calculated  the  freight  upon 
the  gross  weight  of  the  cotton  covered  by  the  bills  of  lading,  and 
after  the  vessel  was  laden  ready  for  sea  he  demanded  of  the  master  a 
bill  of  exchange  for  the  difference;  the  latter  objected  on  the  ground 
that  the  tare  should  be  allowed.     Plaintiff  was  agent  for  the  owners  of 
the  vessel  and  he  alone  could  get  clearance  for  her  at  the  custom- 
house ;  he  refused  to  clear  and  allow  her  to  proceed  unless  the  master 
would  sign  the  bill  and  an  agreement  that  the  question  in  dispute 
should  abide  the  decision  of  the  "  United  States  Court  at  Charleston  " 
in  a  case  then  pending.     The  captain  thereupon  signed.     In  an  action 
upon  the  bill  so  given,  held,  that  the  charter-party  contemplated  the 
bills  of  lading  should  be  resorted  to  in  the  first  instance  as  a  means  of 
payment  to  the  shipowners,  and  plaintiff  was  entitled  to  credit  for  no 
more   than  they  actually  represented ;    i.  e.,  the  amount   collectible 
thereon  ;  that  in  the  absence  of  words  of  exclusion  in  the  charter- 
party  it  should  be  held  to  have  been  framed  in  reference  to  the  usage, 
which  should,  therefore,  have  been  taken  into  consideration  in  estimat- 
ing the  amount  due  on  the  bills  of  lading ;  and  that  defendants  were 
not  concluded  by  the  bill  of  exchange  or  the  agreement :     1st,  As  the 
bill  was  not  delivered  in  final  settlement  of  the  claim  but  under  an 
agreement  in  effect,  an  arbitration,  which  the  captain  as  agent  for  the 
owners  had  no  authority  to  make  ;  2d,  Because  the  unlawful  refusal  of 
plaintiff  to  allow  the  vessel  to  leave  the  port  until  the  bill  was  signed 
constituted  duress.     McPherson  v.  Cox,  86  N.  Y.  472. 

912.  It  seems  that  it  is  not  duress  for  a  person  to  insist  on  his  legal 
rights.     McPherson  v.  Cox,  86  N.  Y.  472. 

913.  Where  a  bill  of  exchange  is  made  payable  to  and  indorsed 
by  "  A.  B.,  Agent "  the  word  "  Agent "  is  a  mere  designatio  personse, 
and,  in  an  action  against  him  as  indorser,  parol  evidence  is  inadmissible 
to  show  that  he  was  mereh'  an  agent,  and  that  the  plaintiff  knew  this 
fact.     Bartlett  v.  Hawley,  120  Mass.  92. 

914.  The  words  "  I  take  notice  of  the  above,"  written  and  signed 
upon  an  unnegotiable  bill  of  exchange  by  the  drawer,  do  not  of  them- 
selves necessarily  impart  an  acceptance  of  it,  and  parol  evidence  of  a 
refusal  to  accept  by  the  drawee,  at  the  time  of  its  presentation,  is  ad- 
missible.    Cook  v.  Baldwin,  120  Mass.  317. 

915.  A  part  payment  by  the  drawee  of  a  bill  of  exchange  is  not 
such  a  recognition  of  his  obligation  as  will,  as  matter  of  law,   bind 
him  to  pay  the  remainder.  Ibid, 

916.  The  fact  that  the  name  of  an  acceptor  was  written  across  the 
stamp  before  the  bill  was  drawn  does  not  reasonably  raise  an  inference 

9 


130  MONKOE'S  DIGEST 

that  the  bill  was  accepted  for  the  accommodation  of  the  drawer.     Har- 
ris v.  Sterling,  9  Ir.  R.,  C.  L.  198— Exch. 

917.  Evidence   that  the  holder  of  a  bill  of  exchange  had  notice, 
shortly  before  maturity,  that  it  had  been  accepted  for  the  accommoda- 
tion of  the  drawer,  is  not  evidence  that  he  had  such  notice  at  the  time 
of  discounting  the  bill.     Ibid. 

918.  An    action    upon    a   bill   of  exchange   against   the   drawer 
thereof,  the  latter  may  defeat  the  action  by  showing  that  there  was  no 
•consideration  therefor,  except  where  it  has  passed  into  the  hands  of  a 
bona  fide  holder  for  value  before  maturity.     McCulloch  v.  Hoffman,  17 
N.  Y.  Sup.  Ct.  Reps.  133. 

919.  Where  such  defence  is  interposed  the  defendant  may  show  all 
that   occurred  at  the  time  of  the   making  of  the  bill,  not  to  limit  its 
effect  or  change  its  character,  but  to  establish  the  absence  of  any  con- 
sideration and  the  knowledge  of  the  plain  tiff  of  that  fact.     Ibid. 

920.  The  authority  of  an  agent  to  receive  payment  by  an  accept- 
ance of  a  bill  drawn  in  blank,  does  not  carry  with  it  an  authority  to 
the  agent  to  draw  a  bill  payable  to  his  own  order.     Hogarth  v.  Wher- 
/q/,32  L.  T.  N.  S.  800 ;  10  L.  R.  C.  P.  630  ;  44  L.  J.  C.  330. 

921.  When   by  the  contract  for  sale  and  purchase  of  goods  it  is 
stipulated  that  payment  should  be  made  by  the  buyer's  acceptances  of 
the  sellers'  drafts,  if  before  the  time  for  delivery  of  the  goods  the  pur- 
chaser becomes  insolvent,  or  the  acceptances  are  dishonored,  the  vendor 
still  has  a  lien  for  unpaid  purchase  money.     Difference  in  this  respect 
between  acceptances  of  the  purchaser  and  those  of  a  third   person. 
Gunn  v.  Bolckow,  Vaughan  &   Co.,  44  L.  J.  Chanc.  732;  10  L.  R.  Ch. 

"491 ;  32  L.  T.  N.  S.  781. 

922.  A   bill   of  exchange   drawn  in   one    State  upon  a  party  in 
another,   the  known  and  common  purpose  of  both  parties   being   to 
•carry  on  a  business  declared  unlawful  by  statute  of  the  first  State,  is 
void  as  to  the  drawer  in  the  hands  of  a  party  to  the  bill  having  notice 
•of  its  true  character.     Davidson  v.  Lanier,  4  Wall.  II.  S.  447. 

923.  The  matter  of  bills  of  exchange  when  drawn  by  officers  of  the 
government,  examined  ;  and  the  law  decided  to  be,  that  as  under  ex- 
isting laws  there  can  be  no  lawful  occasion  for  an  officer  to  accept  drafts 
on  behalf  of  the  government,  such  acceptances  cannot  bind  it,  though 
there  may  be  occasions  for  drawing  or  paying  drafts  which  may  bind 
the  government.     The  Floyd  Acceptance,  7  Wallace,  U.  S.  666. 

924.  The  drawer  of  a  check  undertakes  that  the  drawee  will  be 
found  at  the  place  where  he  is  described  to  be,  and  that  the  sum  speci- 
fied will  there  be  paid  to  the  holder  when  the  check  is  presented ;  and 
if  not  so  paid  and  he  is  notified,  he  becomes  absolutely  bound  to  pay 
the  amount  at  the  place  named.     Hibernian  Nat.  Bank  v.  Lacomb,  84 
.N.  Y.  367. 

925.  The  rights  of  the  parties,  therefore,  are  to  be  governed  by 
the  laws  of  the  place  of  payment.     Hibernia  Nat.  Bank  v.  Lacomb, 
S4  N.  Y.  367. 

926.  The  plaintiff,  a   national  bank,  organized  and  having  a  place 
of  business  in  New  Orleans,  purchased,  for  value,  of  defendant,  the  M. 
&   T.  Bank,  a  Louisiana  corporation,  a  draft  drawn  on  bankers  in  the 
city  of  New  York  for  $10,000,  payable  to  plaintiff's  order  ;  the  draft 
was  duly  presented  to  the  payees  at  New  York,  and  payment  refused; 


OF   STANDARD   DECISIONS.  131 

it  was  duly  protested  and  notice  given  to  the  drawer.  An  action  was 
thereupon  commenced  in  the  Supreme  Court  and  an  attachment  issued, 
which  was  served  on  said  bankers,  who  had  funds  of  the  M.  &  T.  Bank 
in  their  hands.  Held,  that,  under  and  within  the  meaning  of  the  pro- 
vision of  the  Code  of  Procedure  (§  427),  providing  that  an  action 
.against  a  foreign  corporation  may  be  brought  in  the  Supreme  Court  by 
a  plaintiff  not  a  resident  of  this  State,  u  where  the  cause  of  action  shall 
have  arisen  in  this  State,"  plaintiff  was  to  be  regarded  as  a  non-resi- 
dent ;  that  the  cause  of  action  arose  in  this  State ;  and  that,  therefore, 
the  court  had  jurisdiction  of  the  action.  Hibernia  Nat.  Bank  v.  La- 
comb,  84  N.  Y.  367. 

927.  After  the   delivery   of  the   draft   to   plaintiff,  the  M.  &.  T. 
Bank  was  placed  in  liquidation  under  the  laws  of  Louisiana,  and  com- 
missioners were  appointed  to  take  possession  of  and  administer  its 
assets ;  they  were  made  defendants,  and  claimed  title  to  the  attached 
property.     Held,  that  neither  the  law  nor  the  adjudication  under  which 
said  commissioners  were  appointed  could  have  any  operation  here  to 
defeat   or  affect   the   lien   of  plaintiff's   attachment.     Hibernia   Nat. 
Bank  v.  Lacomb,  84  N.  Y.  367. 

928.  Where  a  bill  of  exchange  is  paid  to  one  who  holds  it  in  good 
faith  and  for  value,  he  cannot  be  called  upon  to  account  for  the  money 
paid,  upon  proof  that  in  transactions  between  the  drawer  and  drawee, 
of  which  he  had  no  knowledge  or  means  of  knowledge,  there  has  been 
some  fraud  or  mistake  to  the  injury  of  the  drawee  ;  and  this,  although 
the  holder,  not  having  parted  with  value  at  the  time  when  he  took  the 
draft,  could  not  have  enforced  it  against  the  drawee,  even   after  ac- 
ceptance.    Southwick  v.  First  Nat.  Bank,  84  N.  Y.  420. 

929.  This  rule  is  based  upon  principles  of  public  policy.     South- 
wick  v.  First  Nat.  Bank,  84  N.  Y.  420. 

930.  In   March,  1873,  T.  of  the  firm  of  S.,  T.  &  Co.,  doing  busi- 
ness at  Memphis,  drew  his  draft  upon   that  firm,  payable  to  the  order 
of  J.   N.  M.   &   Son,  a  Boston  firm.     The  draft  was  accepted  by  the 
drawees,   payable   at   Memphis   in   forty   days.     The   holder  sent  the 
draft   to  Memphis  for  collection.     Before  it  fell  due  the  drawees  noti- 
fied the   payees  that  they  would  not  be  able  to  meet  it,  and  requested 
permission  to  draw  for  the  amount.     Permission  was  granted  by  tele- 
gram to  draw  at  sight  to  pay  said  draft.     S.,  T.  &  Co.,  thereupon  drew 
upon  J.  N.  M.  &  Son  a  sight  draft  for  the  amount.     This  draft  was  dis- 
counted by  defendant,  and  with  the  assent  of  the  drawers  the  proceeds 
were  placed  to  their  credit,  their  account  with  defendant  being  at  that 
time  overdrawn  to  more  than  the  amount.     J.  N.  M.  &  Son  accepted 
the  new  draft  on  presentation,  and  subsequently  paid  it.     S.,  T.  &  Co. 
drew  a  check  on  defendant  to  pay  the  old  draft  which  it  refused  to 
honor,  and   refused  to  pay  said   draft  when  presented.     S.,  T.  &  Co. 
soon  after  became  insolvent.     In  an  action  to  recover  the  amount  of 
the  new  draft  it  was  not  alleged  nor  was  it  proved,  that  a  demand  or 
offer   to  return  the  draft  was  first  made,  or  that  defendant  had  any 
knowledge  of  the  telegram,  or  the  purpose  for  which  J.  N.  M.  &  Son 
authorized  the  drawing  of  the  new  draft.     The  court  directed  a  verdict 
for  plaintiff.     Held,  error;  that  neither  a  cause  of  action  for  a  conver- 
sion of  the  draft,  nor  one  to  recover  back  moneys  paid  by  mistake,  was 
established.     Southwick  v.  First  Nat.  Bank,  84  N.  Y.  420. 


132  MONROE'S  DIGEST 

931.  The  complaint  alleged  that  defendant  was  notified  of  the  pur- 
pose for  which  the  new  draft  was  authorized  to  be  drawn ;  that  it  re- 
ceived it,  agreeing  to  collect  and  apply  the  proceeds  for  that  purpose,, 
but  that  it  refused  so  to  do.     Held,  that  the  court  erred  in  denying  a 
motion  for  a  non-suit,  as  plaintiff  failed  to  prove  the  cause  of  action 
alleged  in  the  complaint.     Southwick  v.  First  Nat.  Bank,  84  N.  Y.  420.- 

932.  It  seems,  that  had  the  complaint  been  sufficient,  and  had  a. 
proper  demand  been  made,  plaintiff  would  not  have  been  entitled  to- 
recover      Southwick  v.  First  Nat.  Bank,  84  N.  Y.  420. 

933.  There  is  no  implied  warranty  or  representation  on  the  part 
of  the  vendor  of  a  bill,  valid  in  the  hands  of  an  indorsee,  that  it  was 
drawn  against  funds,  or  that  it  was  not  accommodation  paper.    People's 
Bank  v.  Bogart,  81  N.  Y.  101. 

934.  A   vendor  of  a  bill  purchased  by  him  from  and  known  by 
him  to  have  been  drawn  for  the  accommodation  of  the  acceptor,  and  a& 
a  means  of  borrowing  money  by  the  latter,  is  not  bound,  in  the  absence 
of  any  inquiry  on  the  part  of  the  vendee,  and  where  the  means  of  in- 
formation are  open  to  the  latter,  to  disclose  at  the  time  of  the  sale  the 
circumstances  under  which  the  paper  was  made.     People's  Bank  v. 
Bogart,  81  N.  Y.  101.     The  rule  of  caveat  emptor  applies  in  such  a- 
case.     People's  Bank  v.  Bogart,  81  N.  Y.  101. 

935.  D.,  S.  &  Co.,  a  banking  and  commission  firm,  accepted  draft* 
drawn  upon  the  firm  by  B.,  a  clerk  in  their  employ,  which  were  pur- 
chased by  defendants,  who  were  note-brokers.     B.  had  no  funds  on  de- 
posit, and  said  firm  was  not  indebted  to  him.     Defendants  knew  that 
the  drafts  were  not  drawn  against  funds ;  but  were  issued  by  D.  S.  & 
Co.,  as  a  means  of  borrowing  money.     Plaintiff  had  no  such  knowl- 
edge.    Defendants  had  been  accustomed  for  several  years  to  purchase 
similar  acceptances  and  to  sell  them  in  the  market.     Plaintiff  had 
purchased  large  amounts  of  them  from  defendants  and  other  brokers. 
In  pursuance  of  their  custom  defendants  immediately  after  said  pur- 
chase sent  a  written  notice  to  plaintiff  that  they  had  for  sale  accept- 
ances of  D.,  S.  &  Co.,  stating  the  price  paid  and  for  what  they  would 
sell.     Plaintiff  purchased  a  portion  of  the  paper.     Defendant  made  no 
express  representation  of  any  kind  as  to  the  paper  and  no  inquiry  was- 
made  by  plaintiff  as  to  its  origin,  character  or  consideration.     D.,  S.  & 
Co.,  failed  a  few  days  after  ;  up  to  the  day  of  such  failure  that  firm 
had  enjoyed  the  highest  financial  credit  and  standing,  and  it  did  not 
appear  that  defendants  had  any  knowledge  or  information  that  it  was 
in  embarrassed  circumstances.     Held,  that"  an  action  to  recover  back 
the  moneys  paid  for  the  acceptances  on  the  ground  of  fraud,  on  the 
part  of  defendants,  in  concealing  their  knowledge  of  the  origin  and 
consideration   of  the  paper  was  not  maintainable.     People's  Bank  v. 
Bogart,  81  N.  Y.  101. 

936.  Prior  equities   of  antecedent   parties   to  negotiable  paper, 
transferred  in  fraud  of  their  rights,  will  prevail  against  an  indorsee 
who  has  received  the  paper  in  nominal  payment  of  a  precedent  debt, 
where  there  is  no  evidence  of  an  intention  to  receive  it  in  absolute  dis- 
charge and  satisfaction  beyond  that  of  accepting  or  receipting  it  in 
payment,  or  crediting  it  on  account.     Phoenix  Ins.  Co.  v.  Church,  81 
N.  Y.  218. 

937.  When  a  party  authorized  by  another  to  draw  different  drafts 


OF  STANDARD   DECISIONS.  133 

on  him  upon  different  consignments  to  be  made,  and  this  other  made 
•different  consignments  and  drew  different  drafts,  the  party  authorizing 
the  drafts  accepts  them  in  advance,  and  is  bound  to  set  aside  and  hold 
•enough  money  from  the  proceeds  of  the  consignment  to  pay  them,  come 
in  for  payment  when  they  may.  If  he  settle  an  account  and  pay  over 
his  balance  without  doing  so,  it  is  at  his  own  risk.  Miltenberger  v. 
Cooke,  18  Wall.  U.  S.  421. 

938.  If  the  holder  of  a  bill  of  exchange  locks  it  up  for  two  years 
lie  makes  .it  his  own,  and  cannot  have  recourse  to  the  person  from 
-whom  he  received  it.     Rouleau  v.  Tourangeau,  2  Rev.  de  Leg.  30,  K. 
E.  1820. 

939.  Action  on  draft  drawn  in  New  York  for  goods  sold  and  de- 
livered there,  and  accepted  in  Montreal,  the  price  charged  being  in 
United  States  currency.     Held,  that  the  draft  was  payable  according 
to  such  currency.     Copcutt,  et  al.  v.  McMasters,  1  L.  C.  J.  340 ;  S.  C. 
1863. 

940.  Semble,  that  in  suit  on  a  bill  of  exchange  expressing  value 
received,  and  drawn  without  the  State  by  plaintiff,  the  holder,  on  de- 
fendant, who  is  acceptor,  within  this  State,  damages  at  ten  per  cent, 
are  allowable,  notwithstanding  want  of  protest  (Wagn.  Stat.  215.  216j 
§  8).     Phillips  v.  Evans,  N.  Y.  17. 

94:1.  Gr.  drew  upon  W.  requesting  him  to  pay  an  amount  named  to 
himself  or  order.  Held,  that  the  instrument  could  be  declared  on 
«ither  as  a  bill  of  exchange  or  promissory  note.  Golding  v.  Water- 
house,  3  New  Brunswick,  313. 

942.  The  indorser  of  a  bill  of  exchange  is  in  all  cases  entitled  to 
notice  whether  the  drawer  have  or  have  no  effects  in  his  hands,  and  on 
this  ground  the  court  non-suited  the  plaintiff  and  refused  his  motion 
for  a  new  trial.     Griffin  v.  Phillips,  2  Rev.  de.  Leg.,  30  K.  B.  1821, 
2298  and  23 19,  et  seq.  C.  C. 

943.  Where  a  bill  of  exchange  was  drawn  by  a  party  in  Chicago 
upon  a  firm  in  St.  Louis  and  verbally  accepted  b}'  a  member  of  the 
firm  then  present  in  Chicago  the  validity  of  such  acceptance  is  to  be 
determined  by  the  law  of  Illinois.     In  Illinois  a  parol  acceptance  of  a 
bill  of  exchange  is  valid  and  a  parol  promise  to  accept  it  is  an  accept- 
ance thereof.     Matters  bearing  upon  the  execution, interpretation  and 
validity  of  a  contract  are  determined  by  the  law  of  the  place  where  it 
is  made.     Matters  connected  with  its  performance  are  regulated  by  the 
law  prevailing  at  the  place  of  performance.     Matters  respecting  the 
remedy  depend  upon  the  law   of  the   place   where  suit  is  brought. 
Scudder  v.  Union  Nat.  Bank,  1  Otto.  405. 

944.  Bill  of  exchange  or  draft  headed  "  New  England  Agency  of 
the    Pennsylvania    Fire    Insurance     Company,"   having   the   words 
"  Foster   and   Cole,  General  Agents  for  the   New  England  States " 
printed  in  the  margin,  and  appearing  on  its  face  to  be  drawn  upon  said 
insurance  company  in  payment  of  a  claim  against  it,  is  the  draft  of  the 
company,  and  not  of  Foster  and  Cole,  although  it  is  signed  by  them  in 
their  own  names.     Chipman  v.  Foster,  119  Mass.  189. 

945.  Where  a  bill  of  exchange  was  drawn  for  the  sole  accommoda- 
tion of  the  payees,  and  accepted  by  the  drawee  for  the  same  purpose, 
and  owing  to  the  insolvency  of  the  payees,  the  acceptor  was  compelled 
to  pay  the  bill,  and  brought  an  action  against  the  drawers  to  recover 


134  MONROE'S  DIGEST 

the  amount  paid ;  Held,  that  there  was  no  implied  obligation  on  the 
part  of  the  drawers  to  reimburse  the  acceptor.  Barnet  v.  Young,  29 
Ohio,  7. 

946.  That  the  drawers  and  acceptor,  as  between  themselves,  in  the 
absence  of  any  undertaking  to  the  contrary,  were  not  co-securities  for 
the  payers,  or  liable  to  contribution.     Ibid. 

947.  Holder  cannot  sue  for  original  consideration  when  there  has- 
been  a  failure  to  stamp  foreign  bill  and  a  delay  of  a  year.     Pooley  v. 
Brown,  C.  iii.  565,  11  C.  B.  N.  S.  565,  (Eng.  Com.  Law.) 

948.  A  bill  of  exchange  must  be  payable  at  all  events,  not  de- 
pendent on  any  contingency,  nor  payable  out  of  a  particular  fund ;  and 
it  should  be  for  the  payment  of  money  only,  and  not  for  the  perform- 
ance of  any  act  or  in  the  alternative.     An  instrument  drawn  for  the 
payment  of  six  hundred  dollars,  as  follows :     "  The  hundred  dollars 
out  of  the  first  estimate  or  when  the  first  floor  joists  are  in,  two  hun- 
dred dollars  when  the  building  is  ready  for  the  roof,  and  two  hundred 
dollars  when  the  stoops  are  completed,  and  charge  the  same  to  my  ac- 
count," is  not  a  bill  of  exchange  because  payable  upon  a  contingency,, 
and  out  of  a  particular  fund.     Where  the  payment  depends  upon  a 
contingency,  the  happening  of  the  event  will  not  change  the  character 
of  the  instrument.     It  was  not  a  bill  of  exchange  when  made,  and 
would  not  become  such  by  matter  ex  part  facto.     Miller  v.  Excelsior 
Stone  Co.,  1  BradwelPs  111.  App.  Re'pts.  273. 

949.  An  acceptor  of  a  bill  of  exchange  drawn  by  the  purchaser  of 
machinery,  cannot  by  paying  the  bill  before  maturity,  change  the  rela- 
tions of  the  original  parties  to  it  and  to  each  other,  and  thus  cut  off 
the  drawer  from  the  defence  of  failure  of  consideration,  from  defects  in 
the  machinery  so  purchased.     The  acceptor  paying  before  maturity  is- 
not  a  holder  for  value  of  the  paper,  as  against  the  drawer.     The  liabil- 
ity of  the  acceptor  is  to  pay  according  to  the  terms  of  the  contract.. 
His  remedy,  as  against  the  drawer,  then  is  for  money  had  and  received 
by  him,  of  which  the  bill  is  the  evidence.     An  acceptor,  even  though. 
he  may  have  been  surety  for  the  drawer  to  the  payee  for  machinery 
purchased  by  the  drawer,  in  paying  before  maturity  is  subject  to  any 
defence  which  could  be  made  by  the  maker,  if  sued  by  the  payee.. 
Stark  v.  Alford,  49  Texas,  260. 

950.  The  possession  of  the  draft  by  G.,  the  plaintiff's  assignee, 
was  presumptive  evidence  of  his  ownership ;  and  this  presumption  was 
not  rebutted  by  the  evidence  on  the  trial.     G.  was  one  of  the  firm  of" 
R.,  B.  &  Co.,  upon  whose  claim  the  draft  was  given,  and  was  therefore 
part  owner  of  the  draft  when  it  was  given.     The  paper  is  produced  in 
court  by  the  assignee  of  G.,  and  this  prima  facie  establishes  the  plain- 
tiff's title.     Kidder,  Assignee  v.  Norrobin,  et.  al.,  72  N.  Y.  App.  159. 

951.  In  the  absence  of  any  express  or  implied  agreement,  a  party 
is  not  compelled  to  pay  a  draft  drawn  on  him  merely  because  he  haa 
been  in  the  habit  of  paying  similar  drafts.     Helm  v.  Meyer,  Weis  & 
Co.,  30  La.  943. 

952.  Where  there  is  no  value  or  consideration  for  acceptance  it  i» 
a  good  defence  in  action  by  drawer  or  person  taking  under  him.      Van- 
quelin   v.  Bonard,  C.  ix.  341,  C.;  15   C.  B.  N.  S.  341,  C.  (Eng.  Com. 
Law.) 

953.  Where  a  draft  is  drawn   in  favor  of  the  payee  on  a  certain 


OF   STANDARD   DECISIONS.  135 

fund  to  arise  from  the  sale  of  property  then  in  the  drawee's  hands,  and 
the  payment  of  the  draft,  by  its  own  terms,  is  postponed  to  the  payment 
(out  of  the  same  fund),  of  a  debt  due  the  drawee,  the  drawee  who  has 
not  accepted  the  draft,  is  only  liable  for  whatever  balance  of  the  fund 
may  remain,  after  the  payment  of  his  own  debt.  E.  Marqueze  &  Co. 
v.  Fernandez  &  Co.,  30  La.  195. 

954.  A.,  of  St.  Louis,  being  indebted  to  B.,  of  St.  Joseph,  re- 
quested B.  to  draw  upon   him,  upon  which  draft  he  would  raise  the 
money  and  remit  the  proceeds  to  B.  on  account  of  his  indebtedness. 
B.  accordingly  drew  a  draft  to  the  order  of  C.,  his  banker  at  St.  Joseph, 
upon  which  C.  indorsed  "  Pay  to  the  order  of  C."  his  banker  at  St. 
Joseph,  upon  which  C.  indorsed,  "  Pay  to  D.  or  order,  for  collection  for 
my  account."     Upon  receipt  of  the  draft  at  St.  Louis,  A.  accepted 
it,  and  offered  it  for  discount  to  plaintiff.     By  consent  of  A.  and  plain- 
tiff, the  indorsement  was  stricken  off,  and  plaintiff  then  discounted  the 
draft,  and  A.  received  and  remitted  the  amount  to  B.     In  an  action  on 
the  draft  against  B.,  the  drawer,  held,  (1)  that  plaintiff  could  not,  by 
parol  evidence,  show  a  contract  between  A.  and  B.  by  which  the  latter 
was  to  have  the  draft  discounted  on  the  faith  of  his  name  as  drawer ; 
(2)  that  the  indorsement,  being  restrictive,  destroyed  the  negotiability 
of  the  draft  and  operated  as  a  mere  power  of  attorney  to  the  banker 
at  St.  Louis  to  receive  the  proceeds  of  the  draft  for  the  use  of  the 
drawer  ;  (3)  that  the  erasure  of  the  indorsement,  without  the  knowl- 
edge or  assent  of  B.,  destroyed  the  validity  of  the  draft  as  to  him,  and 
plaintiff,  having  knowledge  of  the  alteration,  was  bound  to  know  that 
such  was  its  effect  when  he  took  the  draft.     Mechanics'  Bank  v.  Valley 
Packing  Co.,  4  Mo.  Ct.  Appeals  (St.  Louis,)  200. 

955.  When  a  bill  drawn  and  indorsed  in  England  payable  abroad 
is  dishonored  by  acceptor's  non-payment,  the  holder  can  recover  from 
indorser  the  amount  of  reexchange  and  no  more.     A  custom  that  he  is 
entitled  to  recover  either  the  reexchange  or  the  amount  he  paid  for  the 
bill  is  invalid.     Suse  v.  Pompe,  xcviii.  538  ;  8  C.  B.  N.  S.  538.     (Eng. 
Com.  Law.) 

956.  A  promise  to  accept  a  future  bill  of  exchange,  in  considera- 
tion of  money  to  be  advanced  thereon  by  the  promisee,  is  invalid,  and 
an  action  thereon  cannot  be  maintained  against  the  promisor.     Flato  v. 
Midhall,  et  al.,  4  Mo.  Ct.  Appeals  (St.  Louis)  476. 

957.  Where  an  accommodation  bill  is  accepted  at  the  request  of  a 
third  party,  who  agrees  to  share  any  loss,  such  third  party  is  not  dis- 
charged by   time  given  acceptor  and  drawer.      Way  v.    Hearn,   ciii. 
774;  11  C.  B.  N.  S.  774.     (Eng.  Com.  Law.) 

958.  Acceptor  who  tears  the  bill  in  two  parts,  with  the  intention 
of  destroying  it,  is  liable  to  the  bona  fide  holder  obtaining  it  from  the 
drawer,  who  fraudulently  joined  the  pieces  in  such  a  way  as  to  look  as 
if  the  halves  had  been  transmitted  by  mail.     Ingham  v.  Primrose, 
xcvii.  82 ;  7  C.  B.  N.  S.  82.     (Eng.  Com.  Law.) 

959.  One  H.  having  entered  into  a  contract  with  defendant  and 
being  indebted  to  plaintiff  gave  to  latter  a  written  order  directed  to 
defendant,  requesting  him  to  pay  plaintiff  $400  on  account  "  as  per 
contract  "  ;  defendant  verbally  accepted  the  order  and  thereupon  plain- 
tiff released  certain  security  that  lie  had.     In  an  action  thereon,  hd<1T 
that  the  instrument  was  not  a  bill  of  exchange,  but  a  mere  appropria- 


136  MONROE'S  DIGEST 

tion  of  so  much  of  the  contract  price  to  become  due  H.  and  only  pay- 
able out  of  that  fund,  which  appropriation  became  irrevocable  when 
assented  to  by  defendant,  and  he  was  liable  to  pay  over  the  amount 
from  the  sums,  if  any,  which  should  become  due  H.  on  the  contract. 
Ehrichs  v.  DeMill,  75  N.  Y.  370. 

960.  The  "  refusal  "  spoken  of  in  the  provision  of  the  statute  in 
reference  to  bills  of  exchange  (1  K.  S.,  769,  §  11),  which  declares  that 
one  upon  whom  a  bill  is  drawn  and  delivered  for  acceptance,  who 
destroys  or  refuses  to  deliver  it,  shall  be  deemed  to  have  accepted  it,  is 
an  affirmative  act,  or  is  made  up  of  conduct  tantamount  to  one ;  it  is 
also  a  willful  or  wrongful  act.     Matteson  v.  Moulton,  79  N.  Y.  627. 

961.  The  mere  retention,  without  a  demand  for  a  return,  or  a  dis- 
sent to  the  retention,  and  with  the  permission  of  the  owner,  is  not  a 
refusal  within  the  meaning  of  the  statute.     Matteson  v.  Moulton,  79 
N.  Y.  627. 

962.  Where,  therefore,  it  appeared  that  the  drawee  promised  to  pay 
the  amount  by  the  time  or  upon  a  contingency  named,  and  that  the 
payee,  relying  upon  this,  permitted  the  bill  to  remain  in  the  hands  of 
the  former,  and  no  demand  or  request  for  its  return,  and  a  denial  or 
evasion  thereof  was  proved,  held,  that  the  drawee  was  not  chargeable 
as  acceptor  of  the  bill.     Matteson  v.  Moulton,  79  N.  Y.  627. 

963.  Also,  held,  that  the  promise  to  pay  was  void  under  the  statute 
of  frauds  (2  R.  S.,  135,  §  2),  as  it  was  an  oral  promise  to  answer  for 
the  debt  of  another.     Matteson  v.  Moulton,  79  N.  Y.  627. 

964.  A  draft  drawn  for  the  price  of  goods  sold  and  delivered  is 
equivalent  to  a  demand  of  payment,  and,  there  being  no  proof  of  credit, 
and  the  bill  having  been  received  without  objection,  equally  brings  the 
case  within  the  statute  of,  which  gives  interest  on  money  due  and 
"  withheld  by  unreasonable  and  vexatious  delay."    Whiteside  v.  Hyman, 
17  N.  Y.  Sup.  Ct.  218. 

965.  The  acceptance  of  a  draft  dated  in  one  State  and  drawn  by  a 
resident  of  such  State  on  the  resident  of  another,  and  by  the  latter  ac- 
cepted without  funds  and  purely  for  the  accommodation  of  the  former, 
and  then  returned  to  him  to  be  negotiated  in  the  State  where  he  re- 
sides, and  the  proceeds  to  be  used  in  his  business  there — he  to  provide 
for  its  payment — is,  after  it  has  been  negotiated  and  in  the  hands  of  a 
bonafide  holder  for  value  and  without  notice  of  equities,  to  be  regarded 
as  a  contract  made  in  the  State  where  the  draft  is  dated  and  drawn, 
even  though  by  the  terms  of  the  acceptance  the  draft  is  payable  in  the 
State  where  the  acceptors  reside.      Tilden  v.  Blair,  21  Wall.  U.  S.  241. 

966.  It  is  accordingly  to  be  governed  by  the  law  of  the  former 
State  ;  and  if  by  the  law  of  that  State  the  holder  of  it,  who  had  pur- 
chased it  in  a  course  of  business  without  notice  of  equities,  is  entitled 
to  recover  the  sum  he  paid  for  it,  though  he  bought  it  usuriously,  he 
may  recover  such  sum,  though  by  the  law  of  the  State  where  the  draft 
was  accepted  and  made  payable, -and  where  usury  made  a  contract 
whollv  void,  he  could  not.     Ibid. 

967.  If,  however,  the  parties  calculate  interest  and  make  a  settle- 
ment upon  the  basis  of  the  old  rate,  and  the  debtor  gives  new  notes 
and  a  mortgage  for  the  whole  on  that  basis,  the  notes  and  mortgage 
are,  independently  of  the  Bankrupt  Act  and  of  any  statute  making 
such  securities,  void  in  toto  as  usurious,  valid  securities  for  the  amount 


OF   STANDARD  DECISIONS.  137 

•which  would  be  due  on  a  calculation  properly  made.  They  are  bad 
only  for  the  excess  above  proper  interests.  Burnhisel  v.  Firman,  22 
Wall.  U.  S.  170. 

968.  An  indorser  of  a  promissory  note,  even  though  it  be  an 
accommodation  note,  is  not  one ;  but  is  a  principal  debtor,  if  the  note 
be   not  paid  and   proper  steps  have  been  taken  to  fix  his  liability. 
Jfrwx  v.  Jones,  22  Wallace,  U.  S.  576. 

969.  Under  the  Act  of  Congress  of  Feb.  10,  1868,  and  the  Act 
•of  the   Legislature   of  Pennsylvania,  of  March   31,  1870,  shares  in 
national  bonds  may  be  valued  for  taxation  for  county,  school,  munici- 
pal and  local  purposes,  at  an  amount  above  their  par  value.     Hepburn  v. 
The  School  Directors,  23  Wall.  U.  S.  481. 


BILLS  OF  LADING. 

970.  The  clause  in  a  bill  of  lading  which  acknowledges  the  receipt 
•of  property,  or  declares  as  to  its  condition,  may  be  disproved  by  parol 
proof.     The  holder  of  a  bill  of  lading  can  acquire  no  greater  rights 
under  it  than  were  possessed  by  the  original  consignee.     Hunt  &  Ma- 
•caulay  v.  Mississippi  Central  R.  R.  Co.,  29  La.  446. 

971.  Bills  of  lading  bound  the  carriers  to  forward  the  goods  to 
their  destination  with  the  usual  dispatch.     To  show  usual  time  of 
transit,  the  shippers  called  a  witness  who  testified  thereto,  but  said  he 
•derived  his  information  from  a  clerk  in  the  freight  office  at  the  place 
of  destination.     Held,  that  fact  being  peculiarly  within  the  knowledge 
of  the  carriers,  that  slight  evidence  thereof  on  the  part  of  the  shippers 
was  sufficient,  and  that  the  testimony  was  competent.     Newell,  et  al.  v. 
Smith,  et  al.,  49  Rowell,  Vt.  255. 

972.  Bills  of  lading  imparted  on  its  face  as  an  absolute  undertak- 
ing.    On  the  book  thereof  were  printed  rules  and  regulations  that  mod- 
ified such  undertaking,  but  it  did  not  appear  that  the  shippers  had 
knowledge  thereof.     Held,  that  evidence  modifying  such  undertaking 
should  come  from  the  party  apparently  bound  thereby.     Newell,  et  al. 
v.  Smith,  et  al,  49  Rowell,  Vt.  255. 

973.  In  an  action  by  plaintiffs,  as  assignees  of  common  carriers  of 
the  freight  on  a  cargo  of  staves  shipped  by  defendants  from  T.  to 
N.  Y.,  plaintiffs,  for  the  expressed  purpose  of  proving  ownership  of  the 
<3ause  of  action,  offered  in  evidence  the  bill  of  lading,  executed  about 
six  years  before  the  trial,  indorsed  by  the  carrier  to  a  bank  as  security 
for  plaintiffs'  acceptance-and  payment  of  an  accompanying  draft ;  also 
with  an  indorsement  thereon,  signed  by  the  bank  and  directed  to  plain- 
tiffs, as  follows  :  "  Upon  your  acceptance  of  the  draft  the  bill  of  lading 
is  placed  in  your  custody  to  collect  and  apply  the  first  proceeds  in  pay- 
ment of  the  draft."     This  evidence  was  rejected.     Plaintiffs  also  offered 
to  prove  by  parol  an  acceptance  which  was  rejected.     Held,  error ;  that 
the  presumption  from  the  possession  of  the  draft  was  that  plaintiffs  had 
complied  with  the  condition  precedent,  i.  e.,  the  acceptance  of  the 
draft  ;  that,  although  plaintiffs  could  not  be  charged  as  acceptors  with- 
out showing  a  written  acceptance,  yet,  as  defendants  were  not  parties 
to  the  draft,  or  privies,  and  the  fact  of  acceptance  was  collateral  to  the 


138  MONROE'S  DIGEST 

issues  herein,  it  might  be  proved  by  parol.     Sprague  v.  Hosmer,  82 
N.  Y.  466. 

974.  Bill  of  lading  for  goods  sent  to  a  purchaser,  and  not  objected 
to  by  him,  amounts  to  a  liquidation  of  an  account  within  the  statute 
of  giving  interest  on  liquidating  accounts  between  the  parties,  and 
ascertaining  the  balance  ;  there  being  no  other  transaction  between  the 
parties.     Cooper  &  Co.  v.  Coates  &  Co.,  21  Wall.  U.  S.  105. 

975.  Bills  of  lading  for  goods  not  actually  put  on  board,  cannot 
be  signed  by  the  master  of  a  ship  under  his  authority  as  agent,  and 
therefore  the  owner  of  the  ship  is  not  responsible  to  parties  taking,  or 
dealing  with,  or  making  advances  on  the  faith  of  such  an  instrument 
which  is  untruthful  in  this  particular.     The  consignee  and  every  other 
party  thus  acting  does  so  with  notice  of  this  limitation  of  the  power 
of  the  master,  and  acts  at  his  own  risk  both  as  respects  the  fact  of 
shipment  and  the  quantity  of  cargo  purported  by  a  bill  of  lading  to  be 
shipped.     Bills  of  lading  are  not  negotiable  in  the  same  sense  in  which 
bills  of  exchange  or  promissory  notes  are.     The}7  stand  in  the  place  of 
the  goods  they  represent,  and  delivery  or  indorsement  of  them  trans- 
fers the  right  of  property  in  the  goods,  but  not  in  the  contract  itself,, 
so  as  to  enable  the  indorsee  to  maintain  at  the  common  law  an  action 
on  it  in  his  own  name.     A  railroad  is  not  liable  for  advances  made  by 
a  commission  merchant  upon  the  faith  of  a  bill  of  lading  fraudulently 
signed  by  one  of  its  station  agents,  the  goods  specified  never  having 
been  shipped  or  received  at  the  depot  for  transportation.     Balto.  & 
Ohio  E.  R.  Co.  v.  Wilkens,  44  Md.  11. 

976.  Where   one   of  two   innocent   parties   must   suffer  from  the 
wrongful  or  tortuous  acts  of  a  third  party,  the  law  casts  the  burden  or 
loss  upon  him  by  whose  act,  omission  or  negligence  such  third  party 
was  enabled  to  commit  the  wrong  which  occasions  the  loss.     Where 
the  agent  of  a  railroad  corporation,  engaged  as  a  common  carrier,  has 
authority  to  receive  grain  for  shipment  over  its  road,  and  issue  in  the 
name   of  the   corporation   a   bill  of  lading  for  the  consignment,  and 
promise  in  the  bill  of  lading  to  deny  that  it  has  received  the  grain 
mentioned  therein,  and  is  liable  to  the  indorsee  and  assignee  for  ad- 
vances  made   in   good   faith  on  the  bill  of  lading.      Wichita  Savings 
Bank  v.  Atchison,  Topeka  and  Santa  Fe  R.  R.  Co.,  20  Kansas,  519. 

977.  Bills  of  lading  are  transferable  by  indorsement.     Robertson 
v.  Stuart,  68  Me.  61. 

978.  The   bill  delivered  to  the  shipper  of  the  goods  is  the  bill 
that  makes  the  contract  concerning  them,  and  if  it  is  different  from  the 
one  retained  by  the  ship,  it  and  the  "  Ship's  bill "  is  evidence  of  the 
contract.     The  Thames,  14  Wall.  U.  S.  98. 

979.  It  seems  that  plaintiff,  on  discount  of  Q.'s  draft,  had  the  se- 
curity for  repayment  derived  from  three  different  sources ;  i.  e.,  the 
responsibility  of  Q.,  defendants'  guaranty,  and  the  special  property,, 
secured  to  them  by  the  bill  of  lading  ;  the  failure  to  realize  on  either  left 
the  others  open  to  them.     Commercial  Bank  v.  Pfeiffer,  108  N.  Y.  242. 

980.  The  discount  of  a  draft  drawn  by  a  consignor  upon  his  con- 
signee, accompanied  by  delivery  of  a  bill  of  lading  to  the  party  mak- 
ing the  advance  passes  to  him  not  only  the  legal  title,  but  in  the  eye 
of  the  law  is  regarded  as  an  actual  delivery  and  change  of  possession 
of  the  property.     Ibid. 


OF   STANDARD  DECISIONS. 

981.  A  consignor  who  had  been  in  the  habit  of  drawing  bills  of  ex- 
change  on   his  consignee  with  bills  of  lading  attached  to  the  drafts 
drawn   (it  being  part  of  the  agreement  between  the  parties  that  such 
bill  should  always  attend  the  drafts),  drew  bills  on  him  with  forged 
bills  of  lading  attached  to  the  drafts,  and  had  the  drafts  with  the 
forged  bills  of  lading  so  attached  discounted  in  the  ordinary  course 
of  business  by  a   bank   ignorant   of  the   fraud.     The   consignee,  not 
knowing  of  the  forgery  of  the  bills  of  lading,  paid  the  drafts.     Heldr 
that  there  was  no  recourse  by  the  consignee  against  the  bank.     Hoff- 
man &  Co.  v.  Bank  of  Milwaukee,  12  Wall.  U.  S.  181. 

982.  S.  and  D.,  correspondents  and  agents  at  Buffalo  of  B.  of  New 
York,  to  fill  an  order  from  B.,  purchased  in  their  own  name  a  boat  load 
of  wheat,  which  was  delivered  on  board  a  canal  boat.     S.  and  D.  were 
not  furnished  by  B.  with  money  or  credit  wherewith  to  make  the  pur- 
chase ;  but  in  accordance  with  their  understanding  and  course  of  busi- 
ness they  raised  the  funds  by  procuring  plaintiff  to  discount  a  draft 
drawn  by  them  on  B.  on  delivery,  as  collateral,  of  a  bill  of  lading  of 
the  wheat,  wherein  it  stated  that  the  wheat  was  shipped  to  New  York 
to  account  and  order  of  plaintiff.     Plaintiff,  upon  acceptance  of  the 
draft,  delivered  the  bill  of  lading  to  B.,  with  an  indorsement  thereon, 
to  the  effect  that  the  wheat  was  pledged  to  it  for  the  payment  of  the 
draft,  and  was  placed  in  B.'s  custody,  "  in  trust  for  that  purpose,"  and 
not  to  be  diverted  to  any  other  purpose  until  the  draft  was  paid.     The 
wheat,  on  arrival,  was  delivered  by  the  carrier  on  the  order  of  B.  to 
defendants,  who  were  warehousemen,  in  store.     B.  sold  the  wheat  to- 
A.,  to  whom  defendants  made  advances  thereon  to  pay  therefor  and 
subsequently  delivered  the  wheat  to  him  on  B.'s  order.     Before  such 
advances  and  delivery  defendants  had  seen  a  copy  of  the  bill  of  lading 
and  of  the  indorsement  thereon.     In  an  action  for  a  conversion  of  the 
wheat,  held,  that  such  a  delivery  of  the  bill  of  lading  did  not  vest  in 
B.  a  title  to  the  wheat  or  confer  upon  him  authority  to  sell,  but  simply 
vested   him  with  the  possession  to  hold  in  trust  for  plaintiff;  that 
plaintiff's  title  could  not  be  divested  by  any  act  of  B.,  until  payment 
of  his  acceptance  ;   therefore  that  defendants  were  liable.     F.  &.  M. 
Nat.  Bank  v.  Hazeltine,  78  N.  Y.  104. 

983.  The  prima  facie  legal  effect  of  a  bill  of  lading,  as  regards 
the  consignee,  is  to  vest  the  ownership  of  the  goods  consigned  by  it  in 
him.     The  Sally  Magee,  3  Wall.  U.  S.  451. 

984.  The  indorsee  of  a  bill  of  lading  may  libel  a  vessel  for  non- 
delivery of  the  goods  shipped,  though  he   be  but  an  agent  or  trustee 
of  the  goods  for  others.     The   Thames,  also    The   Vaughan  v.  Tele- 
graph, 14  Wall.  U.  S.  258. 

985.  A  "  clean  "  bill  of  lading,  that  is  to  say  a  bill  of  lading  which 
is  silent  as  to  the  place  of  stowage,  imparts  a  contract  that  the  goods 
are  to  be  stowed  under  deck.      The  Delaware,  14  Wall.  U.  S.  579. 

986.  This  being  so,  parol  evidence  of  an  agreement  that  they  were 
to  be  stowed  on  deck,  is  inadmissible.     Ibid. 

987.  Bill  of  lading  may  be  explained  by  parol  evidence  in  so  far 
as  it  is  a  receipt  as  distinguished  from  a  contract.     The  Franklin,  9 
Wall.  U.  S.  325. 


140  MONROE'S  DIGEST 


BILLS   OF   SALE. 

988.  An  absolute  bill  of  sale,  executed  to  secure  a  debt,  operates 
us  a  mortgage,  and  will  be  postponed  to  a  subsequent  and  recorded 
mortgage.     Rogers  v.  Vaughan,  31  Ark.  62. 

989.  A  bill  of  sale  of  personal  property  was  made  at  nine  o'clock 
in  the  evening.     The  property  was  twenty -three  miles  distant.     Pos- 
session was  delivered  at  four  o'clock  in  the  morning  of  the  next  day, 
and  the  vendee  remained  in  possession  until  the  property  was  seized  in 
the  afternoon  of  that  day,  on  attachment  at  the  suit  of  a  creditor  of 
the  vendor.     Held,  that  this  was  an  immediate  delivery  of  possession, 
with  continued  change  of  possession,  under  the  statute  of  Montana, 
making  sales  of  personal  property,  "  unless  accompanied  by  immediate 
•delivery  and  followed  by  actual  and  continued  change  of  possession," 
M  conclusive  evidence  of   fraud  against  creditors."     Kleinschmidt  v. 
Me  Andrews,  117  U.  S.  282. 


BONA  FIDE  HOLDER. 

990.  Plaintiffs  contracted  to  sell  to  A.  a  quantity  of  corn  to  be 
paid  for  in  cash  on  delivery.  At  the  request  of  A.  plaintiffs  caused  a 
portion  of  the  corn  to  be  loaded  on  board  a  vessel,  for  their  account, 
and  received  the  weigher's  return,  which  they  indorsed  and  delivered 
to  A.,  to  enable  him  to  procure  bills  of  lading  in  his  own  name  and  to 
sell  his  exchange  drawn  against  the  same,  it  being  agreed  that  the 
title  of  the  corn  should  not  pass  until  payment,  which  was  to  be  made 
on  that  day.  A.  procured  the  bills  of  lading,  which  he  transferred  to 
defendants  as  security  for  three  bills  of  exchange  drawn  against  the 
-corn,  forming  part  of  a  parcel  of  exchange  sold  to  defendants  by  A. 
Defendants  paid  to  A.  a  portion  of  the  proceeds  of  the  exchange  so 
purchased,  and  forwarded  the  three  bills  with  the  bills  of  lading  to 
their  correspondents.  On  the  same  day  plaintiffs  notified  defendants 
that  they  were  the  owners  of  the  corn,  and  demanded  the  same  or  the 
bills  of  lading,  or  that  defendants  should  agree  to  account  to  them  for 
the  proceeds ;  defendants  refused.  At  that  time  the}'  had  in  their 
hands  of  the  purchase-price  of  the  exchange  more  than  the  value  of 
the  corn.  In  an  action  for  the  conversion  of  the  corn,  the  defence  was 
that  defendants  bought  and  paid  for  the  corn  in  good  faith  without  no- 
tice ;  held,  that  no  title  to  the  corn  passed  from  plaintiffs  to  A . ;  that 
the  condition  precedent  of  payment  was  not  waived  by  the  symbolical 
delivery  ;  that  as  defendants,  at  the  time  of  plaintiffs'  demand,  had 
sufficient  means  in  their  hands  to  protect  both  themselves  and  plaintiffs 
from  loss,  their  refusal  to  comply  was  without  justification  ;  that  they 
were  to  be  regarded  as  holding  the  proceeds  in  place  of  the  property, 
And  were  liable  to  pay  it  over  to  plaintiffs  as  the  rightful  owners  ;  and 
that,  by  payment  of  a  portion  of  the  purchase-money  before  notice  of 
plaintiffs'  claim,  defendants  were  entitled  ,to  protection  as  bona  fide 
purchasers,  only  to  the  extent  of  such  payment.  Dows  v.  Kidder.  84 

y.  Y.  121. 


OF   STANDARD   DECISIONS.  141 

991.  There  can  be  no  bona  fide  holder  of  town  bonds,  within  the 
meaning  of  the  law,  applicable  to  negotiable  paper,  as  they  can  only 
be  issued  by  virtue  of  special  authority,  conferred  by  some  statute%and 
are  only  binding  upon  the  town  when  issued  in  the  way  pointed  out 
by  the  statute.     Cagwin  v.  Town  of  Hancock,  84  N.  Y.  532. 

992.  All  persons,  therefore,  taking  such  bonds  are  chargeable  with 
knowledge  of  the  statute  under  which  they  were  issued,  must  see  to  it 
that  its  provisions  were  complied  with ;  and,  in  the  absence  of  some 
provision  making  the  action  of  the  officer  or  agents  of  the  town  bind- 
ing and  conclusive,  the  fact  that  the  holder  of  such  bonds  purchased 
for  value  and  in  good  faith  does  not  preclude  the  town  from  showing 
that  they  were  illegally  issued.     Cagwin  v.  Town  of  Hancock,  84  N. 
Y.  532. 

993.  The  liability  of  the  town  is  not  taken  away  by  the  fact  that 
the  legislator  has  directed  a  special  mode  in  which  the  money  to  pay 
the  principal  and  interest  of  a  bond  is  to  be  raised ;  the  directions  be- 
ing given  to  the  town  and  county  authorities  and  not  to  the  holders  of 
the  bonds  or  coupons.      Town  of  Queensbury  v.  Culver,  19  Wall.  U. 
S.  83. 

994.  The  righ,t  of  stoppage  in  transitu  is  defeated  by  the  indorse- 
ment and  delivery  by  the  vendee  of  a  bill  of  lading  of  the  goods  to  a 
bona  fide  indorsee  for  a  valuable  consideration  without  notice  of  fact& 
on  which  such  right  would  otherwise  exist.     Becker  v.  Hallgarten,  86 
N.  Y.  167. 

995.  An  indorsee  of  a  promissory  note,  taking  it  as  collateral  se- 
curity for  an  antecedent  debt  without  other  consideration,  but  in  good 
faith  and  before  maturity,  occupies  the  position  of  a  holder  for  value 
and  is  protected  as  such.     Confl  Nat.  Bank  v.  Townsend,  87  N.  Y.  8. 

996.  A  satisfaction-piece  of  a  mortgage  is  a  conveyance  within 
the  meaning  of  the  Recording  Act,  and  one  who  advances  money  to  be 
secured  by  bond  and  mortgage  upon  the  faith  of  a  satisfaction-piece  of 
a  prior  mortgage  upon  the  premises  is  a  "  bona  fide  purchaser  "  within 
the  provisions  of  said  act.    (1   R.  S.,  752,  §§  37,  38.)     Bacon  v.  Van 
Schoonhoven,  87  N.  Y.  446. 

997.  Purchase  of  judgment  for  less  than  its  face  does  not  estab- 
lish that  the  purchase  was  not  made  in  good  faith.     See  Harmon  v. 
Hone,  87  N.  Y.  10. 

998.  Where  an  assignee  of  a  bond  and  mortgage  purchased  in 
good  faith  and  for  value,  in  reliance  upon  a  certificate  made  by  the 
mortgagor  at  the  time  of  the  execution  of  the  instruments,  to  the  ef- 
fect that  the  mortgage  was  a  valid  lien,  and  would  be  such  in  the  hands- 
of  an  assignee  to  the  full  amount  of  principal  and  interest,  and  that  he 
had  no  defence  to  the  mortgage  or  bond  in  law  or  equity.     Held,  that 
the  mortgagor  was  estopped  from  setting  up,  in  an  action  to  foreclose 
the  mortgage,  the  defence  of  usury  ;  that  it  was  immaterial  that  the 
mortgagor  had  not  the  plaintiff  in  his  mind  at  the  time  of  signing  the 
certificate,  as  it  was  to  be  taken  as  if  directed  to  whom  it  might  con- 
cern ;  also  that  the  certificate  was  not  deprived  of  its  force,  because 
executed  at  the  same  time  with  the  mortgage,  it  was  not  to  be  consid- 
ered as  part  of  that  instrument.      Weyh  v.  Boylan,  85  N.  Y.  394. 

999.  Also  held,  that  the  fact  that  plaintiff  was  a  second  assignee, 
and  that  the  first  assignees  had  knowledge  of  the  facts,  and  so  could 


142  MONROE'S  DIGEST 

not  avail  themselves  of  the  estopped,  did  not  prevent  him  from  so  doing. 
Weyh  v.  Boylan,  85  N.  Y.  394. 

1000.  The  possession  of  money  vests  the  title  in  the  holder,  as 
to  third  persons  dealing  with   him  and  receiving  it  in  clue  course  of 
business  and  in  good  faith,  upon  a  consideration  good  as  between  the 
parties.     Stephens  v.  Bd.  Edn.  of  Brooklyn,  79  N.  Y.  183. 

1001.  The  doctrine,  that  an  antecedent  debt  is  not  such  a  con- 
sideration as  will  cut  off  the  equities  of  third  parties,  in  respect  to 
negotiable  securities  obtained  by  fraud,  has  no  application  to  money 
so  obtained.     Stephens  v.  Bd.  Edn.  of  Brooklyn,  79  N.  Y.  183. 

1002.  It  seems,  that  while  the  money  remained  on  deposit  in  the 
bank,  plaintiff  could  have  compelled  the  bank  to  restore  it,  but  having 
paid  it  out,  without  notice  of  any  defect  in  the  title  of  G.,  it  was  there- 
after protected.     Stephens  v.  Bd.  Edn.  of  Brooklyn,  79  N.  Y.  183. 

1003.  The  doctrine  that  the  bonafide  holder  for  value  of  negotiable 
paper,  transferred  as  security  for  an  antecedent  debt  merely,  and  with- 
out other  circumstances,  is  unaffected  by  equities  on  defences  between 
prior  parties  of  which  he  had  no  notice,  does  not  apply  to  instruments 
conveying  real  or  personal  property  as  security,  in  consideration  only 
of  preexisting  indebtedness.     People's  Savings  Bank  v.  Bates.  120  U. 
S.  556. 


BONDS. 

1004.  If  a  negotiable  city  bond  be  stolen,  and  its  number  be 
altered  by  the  thief,  it  will  be  good  in  the  hands  of  a  subsequent  bona 
fide  holder  who  takes  it  for  value.     Elizabeth  City  v.  Force,  et  al.,  29 
N.  J.  587. 

1005.  In  debt  on  a  writing  obligatory,  as  follows :    "  Know  all 
men  by  these  presents  that  we,  William  J.  Clark,  of  the  city  of  Provi- 
dence, R.  I.,  as  principal,  and  A.   E.   Burnside,  Eben  A.  Kelly,  and 
John  Gorham,  as  sureties,  are  held  and  firmly  bound  unto  the  Presi- 
dent, Directors  and  Company  of  the  Commercial  National  Bank  of  the 
city  of  Providence,  R.   I.,  in  the  sum  of  ten  thousand  dollars ;  that  is 
to  say,  the  said  William  J.   Clark   in   the  whole  of  said  sum  above 
named,  and  the  said  A.  E.   Burnside,  Eben  A.  Kelly,  and  John  Gor- 
ham, each  as  surety  respectively  in  the  sum  of  thirty -three  hundred 
and  thirty-three  and  33-100  dollars,  to  be  paid  to  them,  the  said  Com- 
mercial   National    Bank,  their    attorney,  successors,  or  assigns,  for 
which  payment  well  and  truly   to  be  made,  we  do  hereby  bind  our- 
selves, our  heirs,  executors,  and  administrators  firmly  by  these  pres- 
ents."    Held,  that  the  obligation  was  several ;  Clark  being  bound  in 
one  whole  sum  of  $10,000,  and   Burnside,  Kelly,  and  Gorham,  being 
•each  bound  in  one  sum  of  $3,333  1-3.     Commercial  National  Bank  v. 
Gorham,  11  R.  I.  162. 

1006.  Held,  that  if  the  secretary  was  entrusted  with  the  funds  of 
the  company,  notwithstanding  it  was  also  the  prescribed  dutj"  of  the 
president  to  receive  the  money  paid  to  the  company  and  to  deposit  the 
same,  and  he  was  responsible  for  any  failure  of  duty  on  his  part,  that 
did  not  relieve  the  secretary  from  responsibility  for  the  faithful  dis- 


OF  STANDARD   DECISIONS.  143 

position  of  any  funds  confided  to  his  care.  That  the  unauthorized  act 
of  the  president  in  entrusting  funds  to  the  secretary  could  not  dis- 
charge the  secretary  from  the  faithful  preservation  thereof.  That  the 
stipulation  of  the  bond  was  an  undertaking  for  the  fidelity  and  honesty 
of  the  secretary  commensurate  with  the  scope  of  his  duties,  and  the 
enumeration  in  the  4th  article  of  the  by-laws  of  certain  things  to  be 
performed  by  him,  did  not  supersede  this  obligation  which  pervaded 
every  department  of  his  official  functions.  That  the  company  had  the 
right  under  this  stipulation  to  insist  upon  indemnity  for  any  deviation 
from  the  line  of  his  duty  to  its  prejudice.  That  in  the  absence  of  any 
provision  to  the  contrary,  such  is  the  necessar}'  import  of  the  terms  of 
the  contract,  and  the  sureties  in  executing  the  bond  must  be  held  as 
stipulating  to  this  effect.  Whilst  it  is  an  undoubted  proposition,  that 
the  liability  of  the  surety  is  not  to  be  extended  by  implication  beyond 
the  terms  of  his  written  contract,  by  which  his  responsibility  is  to  be 
measured,  the  bond  constituting  such  contract  must  have  such  con- 
struction given  to  it  as  to  carry  out  the  intention  of  the  parties 
thereto,  and  in  this  respect  there  is  no  difference  between  such  contract 
and  any  other.  Engler  v.  People's  Fire  Ins.  Co.,  46  Md.  322. 

1007.  A    municipal     corporation     cannot,    without     legislative 
authority,  issue  bonds  in  aid  of  an  extraneous  object.     Every  person 
dealing  in  them  must,  at  his  peril,  take  notice  of  the  existence  and 
terms  of  the  law   which,  it  is  claimed,  conferred  the  power  to  issue 
them,  no  matter  under  what  circumstances  he  may  obtain  them.  Town 
of  South  Ottawa  v.  Perkins,  94  U.  S.  260. 

1008.  In  a  suit  by  a  bona  fide  holder  against  a  municipal  corpora- 
tion to  recover  the  amount  of  coupons  annexed  to  bonds  issued  by  it, 
under  authority  conferred  by  law,  questions  of  form  merely,  or  irregu- 
larity, or  fraud,  or  misconduct  on  the  part  of  its  agents,  cannot  be  con- 
sidered.     Town  of  East  Lincoln  v.  Davenport,  94  U.  S.  801. 

1009.  When  there  is  a  total  want  of  authority  to  issue  municipal 
bonds,  there  can  be  no  bona  fide  holding  of  them.     Township  of  East 
Oakland  v.  Skinner,  94  U.  S.  255. 

1010.  Every  dealer  in  municipal  bonds,  which  upon  their  face,  re- 
fer to  the  statute  under  which   they  were  issued,  is  bound  to  take 
notice  of  all  its  requirements.     Where  upon  their  face,  the  coupons  re- 
fer to  the  bonds  to  which  they  were  "attached,  and  purport  to  be  the 
semiannual    interest    accruing    thereon,   the   purchaser   of   them   is 
charged   with   notice   of  all   which  the  bonds  contain.     Cromwell  v. 
County  of  Sac,  96  U.  S.  51. 

1011.  Defendant  borrowed,  July  5th,  1815,  of  the  New  Amsterdam 
Savings  Bank,  the  sum  of  $5,000,  for  which  he  executed  his  bond  and 
mortgage.     On  the  20th  day  of  September,  1876,  the  bank  became  in- 
solvent and  passed  into  the  hands  of  the  plaintiff  as  receiver.    At  that 
time  there  was  due  and  owing  defendant, *as  a  depositor  of  the  bank, 
the  sum  of  $1,748.01.     Held,  that  defendant  was  entitled  to  a  set-off 
for    the    amount  of  his  deposit.     Receiver  of  New  Amsterdam   Sav- 
ings Hank  v.  Tartter,  54  Howard,  N.  Y.  385. 

1012.  Under  the  provisions  of  the  act  of  the  Legislature  authoriz- 
ing an  exchange  of  State  bonds  with  certain  railroad  companies,  the 
State  was  to  occupy  two  relations  to  those  who  bought  its  bonds  from 
the  company.    The  first  was  that  of  a  debtor  to  the  holder,  and  the  sec- 


144  MONROE'S  DIGEST 

ond  was  that  of  a  trustee  holding  the  bond  of  the  company  and  the 
lien  created  by  the  act  to  secure  payment  of  the  party  who  advanced 
money  to  the  company.  The  Legislature  had  no  authority  to  create 
the  first  relation.  It  did  have  power  to  enact  the  second.  Holland 
v.  T.  State  of  Florida,  et  al.,  15  Fla.  455. 

1O13.  Bond  under  seal,  though  voluntary,  creates  a  debt,  and  is- 
impeachable  only  for  fraud.  Such  a  bond  is  enforceable  against  the 
grantor  and  all  claiming  under  the  grantor  as  volunteers.  Garden, 
Exr'x  v.  Derrickson,  et  al.,  2  Del.  386. 

1014:.  On  an  indictment  for  receiving  "  three  bonds  of  the  United 
States,  each  of  the  value  of  ten  thousand  dollars,  of  the  property  "  of 
one  S.,  it  appeared  that  the  bonds  were,  after  they  were  stolen,  and  be- 
fore they  were  received  by  the  defendant,  fraudulently  altered  by  eras- 
ing the  name  of  S.  and  inserting  the  name  of  C. ;  the  verdict  was 
"  guilty  of  receiving  two  bonds."  Held,  that  the  fraudulent  alteration 
did  not  take  away  from  them  the  character  of  bonds  of  the  United 
States  or  deprive  S.  of  his  ownership  in  them.  Commonwealth  v. 
White,  123  Mass.  430. 

1015.  Where  a  party  has  given  a  bond  to  another  to  secure  the 
faithful  performance  of  the  contract  of  a  third  person,  it  is  the  duty 
of  the  obligee  to  give  reasonable  notice  to  the  guarantor  of  any  defal- 
cation on  the  part  of  the  contractor.     It  is  the  prerogative  of  the 
court  to  define  the  character  of  the  notice,  and  the  duty  of  the  jury  to 
determine  whether  such  reasonable  notice  has  been  given.     Roberts,  et. 
al.  v.  Woven  Wire  Mattress  Co.,  46  Md.  374. 

1016.  Where  a  guaranty  is  subsequent  to   the  contract  between 
the  principal  and  the  guarantee,  and  forms  no  part  of  the  consideration 
thereof,  it  requires  a  distinct  consideration  to  give  it  efficacy  as  a  col- 
lateral undertaking.     But  where   a  guaranty  expressly  referred  to  a 
previous  agreement  between  the   principal  and  the  guarantee,  which 
was  executory  in  its  character,  and  embraced  prospective  dealings  be- 
tween the  parties  ;  then  the  guaranty  purports  upon  its  face,  and  by 
necessary  construction,  a  sufficient  consideration.     Roberts,  et.  al.  v. 

Woven  Wire  Mattress  Co.,  46  Md.  374. 

1017.  Where  a  contract  of  guaranty  was  signed  by  the  guarantor, 
and  delivered  to  the  agent  of  the  guarantee,  and  was  in  the  possession 
of  the  guarantee  at  the  time  of  a  suit  upon  the  contract,  and  was  pro- 
duced by  him  ;  there  is  sufficient  prima  facie  evidence  of  the  delivery 
and  acceptance  of  the  contract  of  guaranty,  and  other  notice  of  its  ac- 
ceptance is  unnecessary,  unless   there  had  been  a  stipulation  to  that 
effect.     Ibid. 

1018.  Where  a  guarantor  warranted  the  faithful  performance  by 
his   principal  of  certain  duties  stipulated  in  a  contract,  among  which 
was  the  duty  of  making  returns  of  sales  ;  the  failure  by  the  guarantee 
to  notify  the  guarantor  of  his  principal's  default,  and  permitting  the 
principal  to  make  returns  in  a  manner  different  from  the  stipulated 
mode,  cannot  afford  sufficient  evidence  of  the  abandonment  of  the  con- 
tract and  the  substitution  of  another.     Ibid. 

1019.  Generally  the  term  "  bond  "  implies  an  instrument   under 
seal.     The  official  bond  required  of  a  collector  of  taxes  must  be  a 
sealed  instrument.     The  words  "  witness  our  hands  and  seals,"  when 
no  seal  is  attached,  will  not  make  the  instrument,  though  otherwise  in 


OF   STANDARD  DECISIONS.  145 

proper  form,  a  bond.  An  instrument,  in  form  a  bond,  but  containing 
no  seal,  voluntarily  executed  and  delivered  in  lieu  of  a  bond  and  ac- 
cepted therefor  is  valid.  Its  acceptance  is  a  sufficient  consideration  to 
cover  all  official  delinquencies  in  not  paying  over  money  actually  col- 
lected after  such  acceptance.  Boothbay  v.  Giles,  68  Me.  160. 

1020.  A   married  woman   cannot   bind   herself  as   surety  on  an 
official  bond.     Hynes  v.  Dickinson,  32  Ark.  776. 

1021.  A  money  bond,  issued  by  a  body  politic,  under  authority  of 
law,  payable  to  bearer,  has  the  negotiable  quality  of  ordinary  commer- 
cial paper,  and  if,  while  it  is  a  valid  instrument,  it  reaches  the  hands 
of  an  innocent  holder  for  value  before  maturity,  although  he  derives 
his  title  from  a  thief,  he  will  be  entitled  to  recover  the  money  due  on 
it.     The  alteration  of  the  number  of  a  bond,  where  different  bonds  of 
the  same  series  are  distinguished  alone  by  the  numbers,  will  render 
the  instrument  void  in  the  hands  of  the  person  who  made  the  altera- 
tion, and  also  in  the  hands  of  those  who  claim  under  him.     While  the 
alteration  of  a  stolen  bond  by  a  thief  will  avoid  it  as  to  him  and  those 
who  claim  under  him,  it  will  not  impair  the  rights  of  the  true  owner, 
Force  v.  Elizabeth,  28  N.  J.  Eq.  403. 

1022.  A  power  to  issue  county  bonds  carries  with  it  a  power  to- 
make  them  payable  out  of  the  State  where  the  county  is,  and  to  sell 
them  also  out  of  the  State.     Synde  v.  The  County,  16  Wall.  U.  S.  6. 

1023.  A  paper  which  in  the  body  of  it  says  "  as  witness  my  hand 
and  seal  "  has  the  word  "  seal  "  affixed  to  the  signature  of  the  maker. 
It  is  a  sealed  instrument  within  the  meaning  of  the  statute.     Code  of 
1849,  ch.  143,  §  2,  p.  580.     Lewis  ex'ors  v.  Overly's  adrn'r,  28  Grattan- 
(Va.)  627. 

1024.  A  person  taking  a  bond  for  the  future  good  conduct  of  an 
agent  already  in  his  employment,  must  communicate  to  a  surety  his 
knowledge  of  the  past  criminal  misconduct  of  such  agent  in  the  course 
of  such  past  employment,  in  order  to  make  such  bond  binding.     The 
mere  non-communication  of  such  knowledge,  irrespective  of  motive  or 
design,  is  a  fraud  in  law,  which  will  invalidate  the  obligation.     Sooy 
Ads.  State  of  N.  J.,  39  N.  J.  135. 

1025.  A  bond  of  indemnity  given  to  an  accommodation  indorser 
conditioned  upon  the  payment  of  certain  notes  or  a  single  renewal  of 
them,  does  not  cover  subsequent  renewals.     In  such  case,  where  the 
notes  were  renewed  twice  to  it,  by  an  agreement  between  them  to  that 
effect,  is  postponed  to  the  lien  of  a  mortgage  upon  real  estate  bound 
by  the  judgment,  given  by  the   defendants  in  the  judgment  before  the 
second  renewal  of  one  of  the  notes  and  on  the  day  of  the  second  re- 
newal of  the  other.     Appeal  of  First  Nat.  Bank,  82  Penn.  St.  488. 

1026.  There  can  be  no  innocent  holder  of  paper  issued  by  a  muni- 
cipal corporation  without  power.     Lindsey  v.  Rottaken,  32  Ark.  619. 

1027.  Municipal  bonds  issued  without  authority,  although  negoti- 
able in  form,  are  void  in  the  hands  of  an  innocent  holder.     Hancock  v. 
Chicot  Co.,  32  Ark.  575. 

1028.  Bonds   with    coupons,  payable   to   bearer,  are   negotiable 
securities  and  pass  by  delivery  ;  and  in  fact  have  all  the  qualities  and 
incidents  of  commercial  paper.     Thomson  v.  Lee,  3  Wall.  U.  S.  327. 

1029.  A  bond  executed  by  an  attorney  in  fact  who  through  what 
is  shown  to  have  been  an  accident  causes  the  bond  to  be  prepared  and 

10 


146  MCmilOES    DIGEST 

signs  it  with  the  obligor's  right  family  name,  but  with  a  wrong  bap. 
tismal  name  is  valid.     Dalton  \.  Cass,  14  Wall.  U.  S.  472. 

1030.  The  designation  of  a  bank  as  the  place  of  payment  of  a 
bond,  imports  a  stipulation  that  its  holder  will  have  it  at  the  bank 
when  due  to  receive  payment,  and  that  the  obligor  will  produce  the 
funds  to  pay  it.      Ward  v.  Smith,  1  Wall.  447. 

1031.  If  the  obligor  is  at  the  bank,  at  the  maturity  of  the  bond, 
with  the  necessary  funds  to  pay  it,  he  so  satisfies  the  contract  that  he 
cannot  be  made  responsible  for  any  future  damages,  either  as  costs  of 
suit  or  interest,  for  delay.     Ibid. 

1032.  The  sureties  upon  an  official  bond  are  not  liable  for  a  defal- 
cation of  their  principal,  occurring  during  a  term  preceding  that  for 
which  the  bond  was  given  ;  nor  are  they  made  liable  because  their 
principal  had  during  the  term  for  which  the  bond  was  given,  property 
out  of  which  he  might  have  provided  funds  to  make  good  the  defalca- 
tion.    Bissell  v.  Saxton,  77  N.  Y.  191. 

1033.  Where  an  officer  elected  for  a  second  term  has  in  his  hands 
at  the  beginning  of,  and  after  he  gives  a  bond  for  that  term,  public 
moneys  which  came  into  his  hands  during  his  first  term,  his  failure 
thereafter  to  pay  and  account  therefor  is  a  breach  of  the  condition  of 
the  bond  and  the  sureties  are  liable.     Ed.  Ed.  v.  Fonda,  77  N.  Y.  350. 

1034.  The  representations,  made  at  the  time  of  execution,  to  a 
surety  by  the  principal  and  a  co-obligee  on  a  bond,  as  to  its  scope  and 
purpose,  cannot  limit  or  qualify  the  express  language  of  the  bond. 
Appeal  of  Lane,  et  al.,  112  Penn.  499. 

1035.  Defendant  claimed  that  there  was  a  fraudulent  suppression 
and  concealment  by  the   persons  who  solicited  him  to  sign  as  to  the 
true  condition  of  the  bank.     It  appeared  that  defendant  was  informed, 
when  he  executed  the  bond,  that  it  was  to  be  used  to  give  credit  to  the 
bank  with  the  banking  department,  and  with  the  public,  so  that  it 
would  be  enabled  to  continue  its  business.     Held,  that  this  was  a  suffi- 
cient notice  that  the  bank  was  in  a  precarious  condition,  and  that  un- 
deV  the  circumstances,  the  fact  that  its  exact  condition  was  not  dis- 
closed was  no  defence ;  also,  that  as  defendant  had  allowed  the  bond  to 
be  treated  as  an  asset  for  three  years,  and  the  public  to  deal  with  it  on 
that  assumption  until   it  became  insolvent,  he  was  estopped  from  set- 
ting up  such  defence.     Hurd  v.  Kelly,  78  N.  Y.  588. 

1036.  An  offer  to  prove  that  the  bond  was  delivered  upon  the 
consideration  that  certain  other  persons  should  execute  it,  who  did 
not,  was  overruled.     Held,  no  error  ;  as  this  defence  was  not  alleged 
in  the  answer  ;  also,  that  as  it  appeared  that  whatever  was  said  upon 
this  subject,  was  prior  to  the  time  the  bond  was  executed,  and  as  the 
bond  itself  was  complete  and  perfect,  the  whole  sum  proposed  to  be 
guaranteed  by  its  being  covered  by  the  several  sums  assumed  by  the 
obligors  who  executed  it,  it  was  to  be  inferred  that  if  it  was  originally 
contemplated  that  others  should  execute  it,  that  purpose  was  aban- 
doned.    Hurd  v.  Kelly,  78  N.  Y.  588. 

1037.  A  bond  regular  on  its  face  cannot  be  avoided  even  by  sure- 
ties (the  obligee  not  having  had  knowledge  thereof)  by  the  fact  that 
they  signed  it  on  a  condition  that  other  persons  were  to  execute  it 
wlm  did  not  execute  it.     Dair  v.  United  States,  16  Wall.  U.  S.  1. 

1038.  A  municipal  bond  in  the  ordinary  form  is  a  promissory 


OP   STANDARD   DECISIONS.  147 

note  negotiable  by  the  law  merchant  within  the  meaning  of  the  term 
in  the  act  of  March  3d,  1875.  New  Providence  v.  Halsey,  117  U.  S. 
336. 

1O39.  It  is  within  the  discretion  of  a  Circuit  Court  to  take  an 
appeal  bond  in  which  each  surety  is  severally  bound  for  only  a  speci- 
fied part  of  the  obligation.  N.  G.  In.  Go.  v.  Albro,  112  U.  S.  506. 


BROKERS. 

104O.  When  a  real  estate  broker  undertakes  to  furnish  a  pur- 
chaser, he  is  bound  to  act  in  good  faith  in  presenting  a  person  as  such, 
and  when  one  is  presented  the  employer  is  not  bound  to  accept  him,  or 
pay  the  commission,  unless  he  is  ready  and  able  to  perform  the  con- 
tract on  his  part  according  to  the  terms  proposed.  If  the  principal 
accepts  the  person  presented,  either  upon  the  terms  previously  pro- 
posed or  upon  modified  terms  then  agreed  upon,  and  a  valid  contract 
is  entered  into  between  the  principal  and  the  person  presented  by  the 
broker,  the  commission  is  earned.  Colemari's  Ex'r  v.  Meade  &  Co.,  13 
Bush,  Ky.  358. 


BURDEN  OF  PROOF. 

1041.  It  seems,  that  when  the  title  of  a  purchaser  of  property  is 
assailed  as  void  under  the  statute  (2  R.  S.  137,  §§  1-5),  because  made 
to  hinder,  delay  and  defraud  creditors  of  the  vendor,  it  is  sufficient  to 
show  in  the  first  instance  the  fraudulent  intent  of  the  vendor ;  if  then 
the  purchaser  shows  that  he  purchased  for  a  valuable  consideration, 
the  party  assailing  his  title  must  show  that  he  had  previous  knowl- 
edge of  the  fraudulent  intent  of  the  vendor,  or  that  he  participated  in 
the  fraud.  Starin  v.  Kelly,  88  N.  Y.  418. 


148  MONROE'S  DIGEST 


CERTIFICATES. 

1042.  Certificate   of  deposit   given   by  a  bank   payable  to  order 
after  fifteen  days,  and  bearing  interest  in  case  the  deposit  should  re- 
main three  months  and  upwards,  is  a  promissory  note.     Richer  \. 

Voyer,  et.  al,  5  R.  L.  213,  S.  C.  R. 

1043.  A  certificate  of  deposit  is  evidence  of  so  high  and  satis- 
factory a  character  as  to  the  sum  deposited,  that,  to  escape  its  effects*, 
the  maker  must  overcome  it  by  clear  and  satisfactory  evidence.    Where 
the  testimony,  aside  from  the  certificate,  is  balanced  as  to  the  amount 
deposited,  the  certificate  will  turn  the  scale.     First  Nat.  Bank  of  La- 
con  v.  Myers,  83  111.  507. 

1044.  When   a   certificate   of  deposit   by  its   terms  matures  six 
months  after  date,  and  is  to  bear  six  per  cent,  interest  from  date,  it 
•will  continue  to  bear  the  same  rate  of  interest  until  paid.     And  where 
a  bank  bi'ings  up  a  plain  case  like  this,  the  judgment  will  be  affirmed 
•with  ten  per  cent,  damages.    Cordell  v.  First  Nat.  Bank  of  Kansas  Cityr 
64  Mo.  600. 

1045.  In  a  suit  against  a  religious  corporation  where  the  certifi- 
cate of  incorporation  was  defective  and  insufficient  to  show  that  the 
defendant  was  a  corporation.     Held,  first,  That  the  fact  that  it  held 
itself  out  as  a  corporation  and  treated  with  the  plaintiff' as  such,  did 
not  estop  it  from  denying  its  liability  as  a  corporation.    Second,    That 
the  statute  law  of  the  State  having  expressly  required  certain  pre- 
scribed acts  to  be  done  to  constitute  a  corporation,  the  omission  of 
those  requisites  cannot  be  supplied  by  the  application  of  the  doctrine 
of  estoppel.     Boyce  v.  Trustees  of  the  M.  E.  Church,  46  Md.  359. 

1046.  Certificates  of  deposit,  payable  at  their  return  to  the  bank,, 
properly  indorsed,  are,  in  legal  effect,   promissory  notes  payable  on 
demand,  and  the  statute  of  limitations   begins  to  run  against  them 
from  their  date,  and  that  no  one  can  be  held  a  bona  fide  purchaser  of 
them  who  does  not  take  them  within   a  short  time  after  their  issue, 
Samuel  A.  Tripp,  et.  al.  v.  Gurtenius,  et.  al.,  25  Mich.  Sup.  Ct.  Reps^ 
605  ;    Gate  v.  Patterson,  25  Mich.  191. 

1047.  A   certificate   of  deposit,  payable  on   demand  •without  in- 
terest, and  a  certified  check  are  in  a  legal  sense  the  same  thing,  are 
governed  by  the  same  rules,  and  that  no  more  lapse  of  time  will  render 
such  check  or  certificate  past  due   or  dishonored.     They  are  both  a 
promise  to  pay  money  on  demand,  without  interest,  which  indicates  an> 
intention  to  leave  it  on  deposit  but  for  a  short  time.     Mead  v.  Mer- 
chants' Bank,  52  N.  Y.  147  ;  Merchants'  Bank  v.  State  Bank,  10  WalL 
648;  Willets  v.  Phcenix  Bank,  2  Duer.  121  ;  Farmers'  and  M.  Bank  v. 
B.  and  D.   Bank,  4    Kern.  624;    Smith  v.    Miller,  43  W.  T.   176  -r 
Girard  Bank  v.  Bank  of  Penn.,  39  Penn.  St.  92. 

1048.  It  has  been  held  that  the  statute  of  limitations  begins  to- 
run  against  a  banker's  certificate  of  deposit,  payable  on  demand,  from 
the  date  of  the  same,  and  that  no  special  demand  is  necessary  to  put 
the  statute  in  motion.     Brummagin  v.  Tallant,  29  Cal.  503. 

1049.  Plaintiff  made  a  deposit  with  the  F.  &  M.  Bank,  receiving 
therefor  a  certificate  payable  to  his  order,  on  return  thereof,  with  in- 
terest.    While  the  certificate  was  outstanding  that  bank  discounted 


OF   STANDARD   DECISIONS.  149 

plaintiff's  note  in  renewal  of  a  former  note  held  by  it ;  and  in  the  or- 
<Unary  course  of  business,  and  for  a  valuable  consideration,  indorsed 
«nd  transferred  the  note  to  defendant,  the  A.  C.  N.  Bank,  before  ma- 
turity, said  defendant  receiving  it  in  good  faith  and  in  ignorance  of 
such  deposit.  The  A.  C.  N.  Bank  then  held  certain  securities  as 
collateral  for  all  paper  so  transferred  to  it  by  said  F.  &  M.  Bank.  At 
the  time  of  the  transfer  the  latter  bank  was  solvent,  but  thereafter  was 
adjudicated  a  bankrupt,  and  defendant  McL.  was  appointed  assignee. 
Plaintiff's  note  was  duly  protested,  and  the  F.  &  M.  Bank  charged  as 
indorser.  The  A.  C.  N.  Bank  still  held  some  of  the  collaterals ; 
Plaintiff  advised  it  of  his  deposit  and  asked  that  it  avail  itself  of  the 
collateral  securities  for  his  benefit,  to  the  amount  of  the  note ;  this  it 
refused  to  do,  but  surrendered  the  securities  to  McL.,  taking  from  him 
A  guaranty  of  the  collection  of  the  note.  No  demand  for  payment  of 
the  certificate  was  made  of  the  F.  &  M.  Bank  before  it  was  adjudicated 
a  bankrupt.  In  an  action  brought  to  compel  the  application  of  the 
securities  to  the  payment  of  the  note,  held,  that  plaintiff  was  not  en- 
titled  to  the  relief  sought ;  that  no  right  of  set-off,  either  legal  or 
equitable,  existed  at  the  time  of  the  transfer  of  the  note ;  and  that  the 
legal  rights  of  the  A.  C.  N.  Bank  were  not  so  affected  by  subsequent 
equities,  arising  out  of  the  changed  relations  of  plaintiff  and  the  F.  & 
M.  Bank,  as  to  require  it  to  first  resort  for  payment  to  the  securities 
in  exoneration  of  plaintiff ;  also,  that  the  other  creditors  of  the  F.  & 
M.  Bank  stood  equal  in  law  and  in  equity  with  plaintiff,  and  the  A.  C. 
.N.  Bank  was  bound  to  regard  their  interests  as  well  as  his.  Hunger 
T.  Albany  City  Nat.  Bank,  85  N.  Y.  580. 


CHARGES  ON  BOOK. 

1050.  •  A  person  who  has  charged  A.  on  his  books  for  goods  sold, 
may  yet  show  that  they  were  in  fact  sold  on  the  credit  of  a  corporation 
•of  which  A.  was  agent,  and  that  the  corporation  received  the  goods  and 
gave  the  seller  credit  for  them.  Northford  Eivet  Co.  v.  Blackman 
Manuf.  Co.,  44  Conn.  183. 


CHATTEL  MORTGAGES. 

1051.  Taylor  mortgaged  certain  personal  property,  including  a 
growing  crop,  to  secure  advances  of  goods,  etc.,  to  enable  Taylor,  a 
planter,  to  make  and  gather  the  crop.  The  mortgage  debt  not  being 
paid,  Paterson  commenced  suit  to  foreclose  the  mortgage,  whereupon 
the  mortgagor  interposed  that  the  mortgaged  property  had  been 
selected  and  set  apart  to  him  as  "  exempted  from  forced  sale  under  any 
process  of  law."  Held,  that  the  term  "  forced  sale  "  as  used  in  the 
Constitution,  is  a  sale  against  the  will  of  the  owner,  and  not  a  sale  to 
which  he  had  expressly  consented  by  giving  the  mortgage;  that 
having  thus  for  a  valuable  consideration,  given  his  consent  to  the 


150  MONKOE'S  DIGEST 

alienation  of  the  property,  upon  his  breach  of  the  condition  of  the 
mortgage,  he  is  estopped  from  revoking  it ;  and  the  court,  in  ordering 
a  sale,  does  but  decree  a  specific  performance  of  the  agreement,  which 
agreement  was  not  forbidden  by  law.  Paterson  v.  Taylor,  15  Floridar 
336. 

1052.  A  chattel  mortgage  permitting  the  mortgagor  to  remain  in 
possession,  and  to  sell,  and  apply  the  proceeds,  or  any  part  of  them,  to- 
his  own  use,  is  fraudulent  and  void  in  law  as  against  creditors.     While 
the  holder  of  a  chattel  mortgage  may  relinquish  his  rights  as  such,  and 
accept  the  chattels  from  the  mortgagor  in  payment  of  his  debt,  or  as  a 
pledge,  such  a  shifting  of  title  must  be  open,  express  and  explicit,  both 
debtor  and  creditor  being  expressly  parties  to  the  payment  or  pledger 
and  their  acts  in  that  behalf  established  as  expressly  and  satisfactory 
as  payment  or  pledge  in  any  other  case.     Blakeslee  v.  Eossman,  43 
Wis.  116. 

1053.  A  chattel  mortgage  given  as  continuing  security  to  cover 
.present  and  future  indebtedness,  is  valid  not  only  between  the  partiesr 

but,  when  free  from  fraud,  as  to  creditors.  Brown  v.  Kiefer,  71  N, 
Y.  610. 

1054.  A    mortgage    may   be    fraudulent    as    against    creditors, 
although  founded  on  a  valuable  consideration.     Braley  v.  Byrnes,  20- 
Minn.  435. 

1055.  Chattel   mortgage,  made   to   secure  debts   maturing   at  a 
future  day,  which  conveys  a  stock  of  goods  in  a  particular  store,  and 
any  other  goods  which  may  from  time  to  time,  during  the  existence  of 
the  mortgage,  be  purchased  by  the  grantors  and  put  into  said  store  to» 
replace  any  part  of  said  stock  which  may  have  been  disposed  of,  or  to 
increase  and  enlarge  the  stock  now  on  hand,  is  void  per  se.     Phelps  v, 
Murray,  2  Tenn.  Eq.  746. 

1056.  A  mortgage  of  personal  property  from  A.  to  B.,  expressed 
to  be  "  subject  to  prior  mortgages  "  to  a  certain  amount  to  C.,  the 
amount  and  terms  of  which  are  known  to  B.,  conveys  only  the  right  to 
redeem  the  property  from  C.'s  mortgage,  and,  although  recorded  first, 
does   not   take   precedence  of  C.'s  mortgage.     Pecker  v.  Silsby,  123 
Mass.  108. 

1057.  It    is   not   necessary   to  the   validity   of   a   mortgage   of 
chattels    that    it    should    be    in    writing.     McKeithen  v.    Pratt,   53 
Ala.  116. 

1058.  A.  sold  and  delivered  to  B.  certain  machinery  for  the  manu- 
facture of  a  patent  machine,  the  license  to  manufacture  which  was  to 
expire  at  a  certain  date,  and  took  in  payment  a  note,  secured  by  a 
mortgage  back  upon  the  machinery  and  referring  to  an  agreement  of 
even  date  between  the  parties,  by  which  A.  was  to  retain  in  payment 
of  the  note  a  part  of  the  price  of  such  machines  as  B.  should  make  for 
him.     When  the  license  expired  a  balance  was  due  upon  the  note  which 
B.  failed  to  pay  on  demand.     Held,  that  A.  was  entitled  to  foreclose 
the  mortgage  for  the  payment  of  the  debt  secured  thereby.     Avery  v. 
Bushnell,  123  Mass.  349. 

1059.  In  Rhode  Island  a  mortgage  of  personal  property  to  be  sub- 
sequently acquired  conveys  no  title  to  such  property  when  acquired, 
which  is  valid  at  law  against  the  mortgagor  or  his  voluntary  assignee, 
unless  after  acquisition   possession  of  such  property  is  given  to  the 


OF   STANDARD   DECISIONS.  151 

mortgagee  or  taken  by  him  under  the  mortgage.     Cook  v.  Corthell,  1 1 
R.  I.  482. 

1060.  Although   a   mortgage   of  personal   property   to  be   sub- 
sequently acquired  is  in  itself  ineffectual  to  vest  in  the  mortgagee  a 
legal  title  to  the  property,  yet  if  after  acquisition  by  the  mortgagor 
the  mortgagee  by  delivery  from,  or  by  consent  of  the  mortgagor,  takes 
possession  of  the  property  under  the  mortgage  conveyance,  the  title  to 
the  property  both  in  law  and  equity  vests  in  the  mortgagee  with- 
out   further  conveyance  or  bill  of  sale.       Cook    v.    Corthell,  11   R. 
I.  482. 

1061.  Although  the  parties  to  a  chattel  mortgage  neglect  to  make 
and  subscribe  the   affidavit   required    by    Gen.   Stats.,  ch.   123,  §  6, 
and  although  the  mortgage  is  not  recorded,  it  is  nevertheless  a  valid 
mortgage  as  against  an  attaching  creditor,  provided  possession  of  the 
mortgaged  property  be  taken  by  the  mortgagee.     Clark  v.  Tarbell,  57 
Hall,  N.  H.  328. 

1062.  Where  a  mortgage  is  given  to  secure  several  notes  held  by 
different  parties,  a  writ  of  entry  to  foreclose  the  mortgage  must  be  in 
the  names  of  all  the  owners  of  the  notes.     Noyes  v.  Barnet,  57  Hall,N. 
H.  605. 

1063.  The  description  in  a  chattel  mortgage  should  be  so  explicit 
as  to  enable  third  persons,  aided  by  the  inquiries  which  the  instru- 
ment itself  suggests,  to  identify  the  property  covered  thereby,  and  a 
mortgage  misdescribing  property  will  not  affect  the  purchase  of  the 
same  by  a  third  party  by  imparting  to  him  notice  of  the  incuinbrance. 
Ivins  v.  Hines,  45  Iowa,  73. 

1064.  A  chattel  mortgage  is  fraudulent  and  void  as  to  creditors 
•when  it  was  given  with  a  tacit  or  express  understanding  and  arrange- 
ment that  the  mortgagee  may  sell  and  dispose  of  the  mortgaged  prop- 
erty, and   apply  the   avails  to   his   own    use.     Potts  v.    Hart,  99  N. 
Y.  168. 

1065.  A  mortgagee  of  personal  property  cannot  maintain  an  ac- 
tion of  claim  and  delivery  to  recover  possession  of  the  same  from  a 
third  person,  when  the  mortgage  provides  that  the  mortgagor  shall  re- 
tain possession  of  the  property  mortgaged.     Right  of  possession  is 
necessary  as  a  basis  for  action.     Laubenheimer ,  App.  v.  McDermott, 
5  Montr  U.  S.  320. 

1066.  The  doctrine  that  a  preexisting  debt  is  a  valuable  consid- 
eration for  a  chattel  mortgage  is  sustained  by  the  weight  of  authority. 
See  Jones  on  Chat.  Mort.,  §  81,  and  cases  cited  therein,  in  which  he 
asserts  that  such  a  mortgage  protects  the  mortgagee  to  the  same  ex- 
tent that  he  would  be  protected  if  he  had  paid  a  new  consideration  at 
the  time  of  the  mortgage.     Kranert  v.  Timon,  65  111.  344  ;  Macbeth  v. 
Wanless,  1  Gal.  225 ;  Paine  v.  Benton,  32  Wis.  491 ;  Buttes  v.  Hough- 
wont,  42  111.  18;  Prior  v.  White,  12  111.  261 ;  Bundy,  11  Ind.  398. 

1067.  One  not  having  a  judgment  and  execution  is  not  a  creditor 
•within  the  meaning  of  the  provision  of  the  statutes  (§  1,  chap.  279, 
Laws  of  1833),  declaring  that  the  omission  to  file  a  chattel  mortgage 
renders  it  void  as  against  creditors  of  the  mortgagee,  and  subsequent 
purchasers  or  mortgagees  in  good  faith.     Jones  v.  Graham,  77  N.  Y. 
628. 

1068.  Nor  is  a  person  a  mortgagee  in  good  faith,  within  the  mean- 


152  MONROE'S  DIGEST 

ing  of  said  statute,  whose  mortgage  was  given  for  a  preexisting  indebt- 
edness without  any  new  consideration.  Jones  v.  Graham,  77  N.  Y. 
628. 

1069.  W.  delivered  to  plaintiff  as  security,  instruments  in  form 
and  purporting  on  their  face  to  be  issued  under  the  act  in  relation  to 
warehouse  receipts  (Chap.  326,  Laws  of  1858,  as  amended  by  chap. 
.353  of  the  Laws  of  1859,  and  by  chap.  440  of  the  Laws  of  1866.) 
They  were  signed  by  W.  and  acknowledged  the  receipt  from  himself, 
.as  owner  of  the  property  specified.     Held,  that,  as  between  the  parties, 
they  derived  no  force  or  efficacy  from  said  act,  and  in  no  manner  trans- 
ferred the  possession  of  the   property  or  represented  any  such  actual 
transfer ;  that  there  was  no  valid  pledge  or  actual  warehouse  receipt, 
•but  a  transfer  of  title,  as  collateral,  which  could  operate  only  as  a  chat- 
tel mortgage.     F.  &  M.  Nat.  Bank  v.  Lang,  87  N.  Y.  209. 

1070.  Because  a  mortgagee  of  a  chattel  temporarily  uses  it  with 
the  assent  of  the  mortgagor,  and  then  returns  it  to  him,  the  mortgage 
lien  upon  it  is  not  thereby  extinguished. 

1071.  To  make  applicable  the  rule  that  in  the  absence  of  a  specific 
appropriation  of  payments  by  either  the  debtor  or  creditor,  the  law 
will  appropriate  them,  there  must  be  some  testimony  tending  to  show 
that  no  such  appropriation  has  been  made  by  the  parties.    Albert,  Sher- 
iff v.  Lindau,  46  Md.  334. 

1072.  Chattel  mortgage  does  not  protect  from  execution  materi- 
als purchased  by  the  execution  debtor  before  it  was  given.     Held,  that 
this  contract  (chattel  mortgage)   of  indemnity  only  amounted  to  a 
mortgage  on  the  materials,  and  not  being  filed,  did  not  protect  materi- 
als that  had  been  sold  to  the  principal  before  it  was  executed,  from 
Beizure  on  execution.     Hurd  v.  Brown,  37  Mich.  484. 

1073.  A  chattel  mortgage,  as  between  the  parties,  is  valid,  with- 
out any  acknowledgment ;  but  without  the  acknowledgment  it  has  no 
•effect  upon  the  rights  of  third  parties  acting  in  good  faith,  and  notice 
.of  such  a  mortgage  does  not  prevent  a  creditor  from  subjecting  the 
property  to  the  payment  of  his  debt.     McDowell,  et  al.  v.  Stewart,  83 
111.  538. 

1074.  The  mortgagor  of  a  chattel,  with  the  verbal  consent  of  the 
mortgagees,  sold  it  to  the  defendant  without  notifying  him  of  the  ex- 
istence of  the  mortgage;  but  before  deliver}',  and  before  payment  of 
the  purchase  money,  the  mortgagees   informed  the  defendant  of  the 
mortgage,  and  that  they  would  hold  him  accountable  to  them  for  the 
price.     Held,  that  the  mortgagees  could  recover  the  price  of  the  pur- 
.chase  in  an  action  of  assumpsit  in  their  own  names.     Bank  v.  Ray- 
mond, 57  Hall,  N.  H.  144  ;  Huntingdon  v.  Knox,  7  Cush.  373. 

1075.  When  a  mortgagee  of  chattels  upon  a  public  sale  makes  rea- 
.sonable  and  fair  efforts  to  sell  the  property  for  a  good  price,  and 
through  the  acts,  statements  and  notice  of  the  mortgagor  at  the  time 
of  sale,  the  effect  of  which  is  to  discourage  bidding,  and  the  same  does 
not  bring  a  full  price,  a  court  of  equity  will  not  set  aside  the  sale  on 
the  application  of  the  mortgagor.     The  effect  of  a  public  sale,  upon 
due  notice,  under  a  chattel   mortgage  is  to  cut  off  the  equity  of  re- 
demption of  a  mortgagor.     A  mortgagee,  under  a  chattel  mortgage, 
may  himself  become  a   purchaser  on   a   public  sale  of  chattels.      In 
order  to  redeem  under  a  chattel  mortgage  the  mortgagor  must  in  good 


OF  STANDAKD   DECISIONS.  153 

faith  pay  or  tender  the  whole  mortgage  debt,  and  that  before  suit 
brought.  Where  the  plaintiff  upon  a  trial  is  not  found  to  have  just 
ground  for  equitable  relief,  the  action  cannot  be  held  to  adjust  rights 
and  claims  between  codefendants,  not  related  to  the  cause  of  action 
set  up  in  the  complaint.  Hall  v.  Dttaon,  55  Howard,  N.  Y.  19. 

1076.  Upon  the  loan  of  money  to  be  secured  by  a  chattel  mort- 
gage on  copyrights,  music  plates,  etc.,  etc.,  a  printing  contract  between 
the  parties  being  made  at  the  same  time,  by  which  it  was  agreed  that 
the  mortgagees  might  print  music  from  the  plates  of  the  mortgagor, 
the  expense  of  printing  and  materials  to  be  borne  by  the  mortgagees, 
the  profits  from  the  music  so  printed  to  be  divided  equally  between 
the  parties,  it  appearing  that  the  loan  of  the  money  and  the  printing 
contract  were  part  and  parcel  of  one  general  arrangement  in  the  be- 
ginning, but  were  in  fact  made  afterwards  divisible,  and  after  the  mort- 
gage was  executed,  and  before  the  printing  contract  was  made,  the  op- 
tion was  given  to  the  mortgagors  to  give  up  the  printing  agreement, 
but  they  desired  it  to  be  made.     Held,  that  the  transaction  was  not 
usurious.     Clark  v.  Sheehan,  47  Howard,  N.  Y.  188  ;  also  55  Howard, 
N.  Y.  Practice  Reports,  19. 

1077.  A  chattel   mortgage   upon  after-acquired  goods  will  hold 
against  a  bona  fide  purchaser  with  notice.     He  can  have  no  better  title 
than  his  vendor.     Robson,et.  al.  v.  Mich.  Central  R.  R.  Co.,  37  Mich.  70. 

1078.  Where  a  chattel  mortgage  fails  to  duly  describe  the  prop- 
erty, the  defect  is  cured  by  the  subsequent  delivery  of  the  property  to 
the  mortgagee,  as  against  parties  who  have  not  acquired  any  rights  or 
interest  before  such  delivery.     The  delivery,  in  such  a  case,  must  be 
such  an  actual  transfer  of  the  possession  and  control  of  the  property 
that,  if  it  was  destroyed,  the  loss  would  be  that  of  the  mortgagee.     A 
constructive  possession  will  not  avail.     Parsons  Savings  Bank  v.  Sar- 
gent, et.  al.,  20  Kansas,  576. 

1079.  The  purchaser  of  a  house  and  the  furniture  therein  imme- 
diately leased  the  same  to  the  vendor,  who  remained  in  possession  of 
the  furniture,  as  lessee,  the  same  never  having  been  out  of  his  posses- 
sion.    Held,  that,  as  against  creditors  of  the  vendor,  the  sale  of  the 
furniture  was  void.     Bishop  v.  O'Connell,  et.  al.,  4  Mo.   Ct.  Appeals, 
(St.  Louis,  578.) 

1080.  In  a  chattel  mortgage  made  by  M.  &  Co.,  the  goods  were 
described  as  "  two  sets  of  blacksmithing  and  one  set  of  wagon  maker's 
tools  complete,"  etc.,  "  together  with  all  their  floating  capital  stock  in 
trade,  to  the  value  of  $1,000,"  etc.,  "  connected  with  the  business  they 
carry  on  in  the  said  village  of  Watertown,  as  wagon  and  carriage 
builders,  general  blacksmiths,  etc.,  under  the  name  and  firm  of  M.  & 
Co."     Held,  an   insufficient   description    as  regarded  the  tools.     Per 
Gwynne,  J.     The  mortgage  clearly  could  not  pass  after  acquired  goods, 
for  though  after  acquired  goods  may  be  affected  in  equity,  it  could  only 
be  when  the  mortgage  shows  an  intention  to  do  so.     Mason  v.  Macdon- 
ald,  25  Upper  Canada,  Com.  Pleas  Rpts.  435. 

1081.  A  mortgage  of  personal  property  consisting  of  goods  in  a 
merchant  tailoring  establishment  is  void  as  against  creditors,  where 
the  mortgagors  by  the  consent  of  the  mortgagee  continue  to  carry  on 
business,  manufacturing  and  selling  the  goods,  in  the  usual  course. 
City  National  Bank  v.  Goodrich,  3  Colo.  139. 


154  MONROE'S  DIGEST 

1082.  Husband  and  wife  gave  a  note  and  secured  it  by  a  mortgage 
on  her  furniture.     The  husband,  with  mone}'  borrowed  of  his  father, 
paid  the  note,  receiving  the  papers  into  his  possession.     Immediately 
afterwards  and  before  separation,  by  arrangement  between  all  parties 
except  the  wife  (who  was  not   present),  the  note  and  mortgage  were 
assigned  by  the  mortgagee  to  the  father.     Held,  that  the  wife  would 
hold  the  property  clear  of  the  incumbrance  by  mortgage.     The  father 
would  have  no  right  in  the  mortgage  by  subrogation,  being  under  no 
obligation  to  pay  it,  and  having  no  interest  in  it  when  it  was  paid. 
Moody  v.  Moody,  68  Me.  155. 

1083.  A  chattel  mortgage  is  in  law  a  conveyance  of  the  goods  and 
chattels  mortgaged,  and  passes  the  title  of  the  mortgagor  for  the  pur- 
poses for  which  it  was  made.     The  right  of  a  mortgagee,  under  a 
mortgage  made  by  a  tenant  of  his  goods  and  chattels  upon  the  demised 
premises,  is  superior  to  that  of  a  bailiff  subsequently  seizing  them  un- 
der a  warrant  to  distrain  for  rent.     But  a  chattel  mortgage  in  this 
State  is  regarded  as  a  mere  security  for  the  debt,  and  does  not  entirely 
divert  the  property  of  the  mortgagor.     The  interest  of  a  mortgagor  in 
the  chattels  mortgaged  is  such  an  interest  as  may  be  seized  and  sold 
under  ordinarjr  process  of  law  against  him.      Woodside  v.  Adams,  40 
N.  J.  L.  R.  417. 

1084.  Goods  in  possession  of  mortgagee — exemption  from  seizure 
under  writ  of  attachment  in  insolvency.     Held,  that  goods  and  chattels 
in  the  possession  of  a  mortgagee  of  them  cannot  be  seized  and  sold,  the 
proceeds  paid  over  to  a  sheriff  acting  under  a  writ  of  attachment  in  in- 
solvency against  the  mortagor.     Held,  also,  that  the  possession  of  the 
defendant  to  whom  such  goods  had  been  sent  by  the  plaintiff,  the  mort- 
gagee, to  be  sold,  and  their  proceeds  paid  over  to  him,  was  the  possession 
of  the  mortgagee ;  and  defendant  having  in  such  case  assented  to  the 
seizure  by  the  sheriff,  and  acting  under  his  directions,  sold  the  goods 
and  paid  over  the  proceeds,  was  liable  to  repay  them  to  the  mortgagee. 
Watson  v.  Henderson,  et.  al.,  25  Upper  Canada,  Com.  Pleas  Rpts.  562. 

1085.  If  the  holder  of  a  chattel  mortgage  had  taken  possession 
of  the  chattels  under  his  mortgage,  before  the  judgment  creditor  re- 
covered his  judgment,  will  not  give  validity  to  the  mortgage  as  against 
the  latter,  if  the  mortgage  was  not  filed  according  to  the  provisions  of 
the  act  concerning  mortgages,  and  there  were  not   immediate  delivery 
and  continued  possession  of  the  goods,  according  to  the  provision  re- 
ferred  to.     A   mortgage  of  after-acquired  property  can  only   attach 
itself  to   such   property   in   the   condition    in    which  it  comes  to  the 
mortgagor's  hands.     If  it  is  already  subject   to  mortgages  or  other 
liens,  the  general  mortgage  does  not  displace  them,  though  the}'  may 
be  junior  in  point  of  time.     It  only   attaches  to  such  interest  as  the 
mortgagor  acquires.      Williamson  v.  New  Jersey  R.  W.  Co.,  28  N.  J. 
Eq.  277. 

1086.  Chattel    mortgage.     An    immaterial    variation  between  a 
chattel  mortgage  and  the  copy  subsequently  filed  does  not  invalidate 
the  refiling.     A  mistake  in  the  number  of  the  lot  where  the  chattels 
were,    was    held   to   be   immaterial   under   the  circumstances.      The 
statement  annexed  to  the  affidavit  with  a  copy  of  the  mortgage,  did 
not    give  distinctly  all  the  information  required  by  the  act,  but  the 
affidavit   and   statement  together  contained  all   that   was  necessary. 


OF   STANDARD   DECISIONS.  155 

Held,  sufficient,  the  statement  contained  an  item  of  $2.25  as  paid  for 
refiling,  which  the  mortgagee  had  no  right  to  charge  :  Held,  not  to 
vitiate  the  instrument.  A  chattel  mortgage  was  given  for  $1,070  ;  it 
afterwards  appeared  that  the  amount  was  made  up  in  part  of  a  promis- 
sory note  made  and  given  by  the  mortgagee  to  the  mortgagor  at 
the  time  of  the  execution  of  the  mortgage  and  not  paid  for  some 
months  afterwards.  Held,  that  in  the  absence  of  fraud  the  mortgage 
was  valid.  Walker  v.  Niles,  18  Grant's  Chancery,  Ontario,  210. 

1087.  The   holder   of  a   chattel   mortgage   agreed   to  assign  hi& 
mortgaged   interest  to  a  third  party  who  proposed  to  purchase  the 
chattels  of  the  mortgagor  but  had  no  other  interest  in  the  mortgage, 
and  who  never  became  the  owner  of  the  equity  of  redemption.     The 
agreement  contained  the  following  clause  :     "  In  case  of  failure  to  pay 
said  notes,  or  either  of  them,  or  the  interest,  the  said  party  of  the  first 
part  (the  mortgagee)  resumes  the  right  to  foreclose  said  mortgage,  or 
take  or  sell  said  property,  the  same  to  all  intents  or  purposes  as  if  said 
notes  below  mentioned  were  the  notes  mentioned  and  specified  in  said 
mortgage,  and  it  being  the  intent  hereof  to  allow  said  mortgage  to  re- 
main as  security  for  the  payment  of  the  notes  below  mentioned.     Held, 
that  this  agreement  was  collateral  to  the  mortgage,  and  that  the  pay- 
ment of  one  of  the,  notes  was  not  a  payment  pro  tanto  of  the  mort- 
gage  debt.     The   mortgagee  has  previously  insured  his  interests  as- 
a   mortgagee   for   $57,000.     After   a   partial  payment   of  $20,000  by 
the  proposed  buyer  of  the  property  mortgaged  there  was  a  loss  by 
fire    of   $53,000    on    the    mortgaged    property.     Held,  that  the    in- 
sured rights  of  the  mortgagee  was  not  impaired  or  diminished  by 
such  partial  payment.     The  proposed  purchaser  of  the  goods  mort- 
gaged agreed  to  keep  them  insured  for  the  benefit   of  the  mortga- 
gee.    This  he  did  not  do,  and  the  mortgagee  insured  his  interest  a& 
mortgagee  in  his  own  name.     Held,  that  a  liability  of  the  proposed 
purchaser  for  the  cost  of  the  insurance  under  his  contract  with  the 
mortgagee,  did  not  affect  the  contract  between  the  mortgagee,  and  the 
insurers.     Haley  v.  Mftrs.  Fire  and  Marine  Ins.  Co.,  120  Mass.  292, 

1088.  When  chattel  mortgage  was  executed  it  was  agreed  between 
the  parties  that  the  mortgagor  may  go  on  and  sell  the  stock  and  use 
the  proceeds,  generally,  in  his  business,  and  this  agreement  is  carried 
out  by  permitted  sales,  the  transaction  is  fraudulent  in  law  as  against 
the  creditors  of  the  mortgagor.      Southard  v.  Benner,  et  al.,  72  N.  Y. 
App.  424. 

1089.  A  mortgage  of  a  certain  described  horse,  and  all  other  live 
stock   of  which  the  mortgagor   may   become  owner  during  the  year, 
gives  a  valid  lien  upon  any  horse  or  other  animal  which  the  mortgagor 
may  acquire  during  the  given  year,  by  one  or  more  exchanges  of  the 
first  mortgaged  horse  and  his  successors.     Davis  v.  Marx,  55  Miss. 
376. 


CHECKS. 

1090.  A  garnishee  order  was  made  under  Order  XLY.,  Rule  2, 
attaching  a  debt.  At  the  time  the  order  was  made  the  garnishees  had 
given  the  judgment  debtor  a  check  for  the  amount  of  the  debt.  Upon 


156  MONROE'S  DIGEST 

service  of  the  order  on  the  garnishees  they  stopped  payment  of  the 
check  at  the  bank,  the  check  not  having  been  presented.  Held,  that 
upon  the  check  being  stopped  it  was  as  if  it  had  never  been  given,  and 
that  there  was  therefor  an  existing  debt  capable  of  being  attached, 
and  the  garnishee  order  was  effectual.  Cohen  v.  Hale,  3  App.  Cas. 
(41  Victoria  Law  Report,  Eng.)  371. 

1091.  If  a   partner  consents  that  a  check  of  the  firm  be  applied  on 
an  individual  debt  of  his  copartner,  he  may,  at  any  time  before  such 
application   is  in  fact  made,  or  the  rights  of  third  parties  intervene, 
withdraw   such  consent,  and  after  notice  by  him,  not  to  so  apply  the 
check,   it   cannot   be   so  applied.     National   Bank  of  Jacksonville  v. 
Mapes,  et  al.,  85  111.  67. 

1092.  Check  contained  this  recital:     "To  hold  as  collateral  for 
1,000  P.  T.  oil,  pipage  paid,"  etc.,  and  across  its  face  the  cashier  of  the 
bank  certified  "  Good  when  properly  indorsed."     Held,  that  this  check 
was  not  drawn  in  the  usual  course  of  banking  business  and  the  certifi- 
cate of  the  cashier  would  not  bind  the  bank.     Dorsey  v.  Abrams,  85 
Penn.  299. 

1093.  The  drawer  of  a  check  delivered  it  to  the  payee,  intending 
thereby  to  give  to  the  payee  the  fund  on  which  the  check  was  drawn. 
Held,  that  until  the  check  was  either  paid  or  accepted,  the  gift  was  in- 
complete, and  that  in  the  absence  of  such  payment  or  acceptance,  the 
death  of  the  drawer  operated,  as  against  the  payee,  as  a  revocation  of 
the  check.     Simmons  v.  Savings  Society,  31  Ohio,  457. 

1094.  The  giving  of  a  check  by  the  debtor  with  the  intention  of 
appropriating  it  to  the  debt  of  the  plaintiffs,  and  the  giving  of  a  re- 
ceipt therefor  by  the  plaintiffs'  agent,  acting  within  the  scope  of  his 
authority,  constitute  by  the  law  of  Canada  an  appropriation  as  in- 
tended.    Such  appropriation  could  only  be  changed  by  a  rescission  of 
the  appropriation  made  by  consent  of  all  parties  interested.     In  an  ac- 
tion against  the  agent  for  moneys  had  and  received  on  account  of  the 
plaintiffs,  such  rescission,  being  put  on  the  footing  of  a  contract  by  the 
Canadian  law,  must  be  specially  pleaded  as  a  defence.     Kershaw  v. 
Kirkpatrick,  41-42  Eng.  Law  Reports,  3  App.  Cases,  345. 

1095.  When  checks  on  another  bank  are  handed  by  a  depositor  to 
the  receiving  teller  of  a  bank,  and  are  by  the  teller  credited  on  the  de- 
positor's  pass  book,  they  are  only  received  for  collection,  and  if  not 
paid  on  presentation,  may  be  returned  and  the  credit  in  the  pass  book 
canceled.     National  Gold  Bank  v.  McDonald,  51  Cal.    64;     Boyd  v. 
Emerson,  2  Adolphus  &  Ellis,  184. 

1096.  Without  deciding  the  mooted  question  whether  a  check  or 
draft  of  a  person  on  a  bank  in  which  he  has  deposits  operates  as  an 
equitable  assignment  of  the  fund  so  on  deposit  to  the  holder  of  the  check 
to  the  amount  of  it,  it  is  clear  that  such  check  or  draft  does  not  bind  the 
fund  in  the  hands  of  the  bank  until  it  has  notice  of  the  draft  or  check 
by   presentation  for  payment,  or  otherwise:  until  then,  other  checks 
drawn   afterward  may  be  paid,  or  other  assignments  of  the  fund,  or 
part  of  it   may  secure  priority  by  giving  prior  notice.     Laclede  Bank 
v.  Schuler,  120  U.  S.  511. 

1097.  A  check  is  an  appropriation  of  so  much  of  the  maker's 
funds  in  the  bank  upon  which  it  is  drawn  as  is  necessary  to  meet  it; 
hence  the  maker  cannot  object  to  any  delay  in  presenting  it,  unless  he 


OF   STANDARD   DECISIONS.  157 

can  show  special  injury  to  himself  arising  therefrom.  If  the  maker 
has  withdrawn  from  the  bank  his  entire  deposit  against  which  the 
check  is  drawn  he  is  not  injured  by  any  delay  in  presenting  it,  or  any 
lack  of  formal  notice  of  its  non-payment,  before  action  brought.  Emory 
v.  Hobson,  63  Me.  32. 

1098.  The  rightful  possession  of  a  check  made  payable  to  the 
order  of  a  particular  person,  confers  no  authority  on  the  drawee  to  pay 
the  same  to  the  person  having  such  possession,  without  the  genuine  in- 
dorsement of  the  payee.     If  the  drawee  relies  upon  false  representa- 
tions as  to  identity,  for  which  neither  the  drawer  nor  payee  are  respon- 
sible, he  to  identify,  for  which  neither  the  drawer  nor  payee  are  re- 
sponsible, he  makes  payment  to  a  wrong  person,  at  his  peril.     Dodge 
v.  Nat.  Ex.  Bank,  30  Ohio,  1. 

1099.  A  bank  which  pays  out  money  on  a  check,  purporting  to  be 
signed  by  a  depositor,  but  the  signature  on  which  is  in  fact  forged  by 
his  clerk,  is  not,  in  the  absence  of  evidence  that  the  clerk  has,  or  was 
supposed  by  the  bank  to  have,  any  authority  to  sign  the  depositor's 
name,  exempt  from  liability  to  the  depositor,  by  proof  that  the  forgery 
was  committed  on  a  blank  form  taken  from  the  depositor's  check  book, 
which  was  left  lying  about  in   his  office  during  the  day  ;  that  it  was 
stamped  with  a  hand  stamp,  sometimes  used  on  his  checks,  and  which 
was  accessible  to  any  one  in  the  office ;  that  the  clerk  was  allowed  to 
fill  up  checks,  and  was  introduced  by  the  depositor  to  the  officers  of 
the  bank  as  the  person  who  was  authorized  to  receive  money  on  the 
depositor's  checks.      Mackintosh    v.  Eliot  National  Bank,  123  Mass. 
393. 

1100.  Where  upon  the  face  of  a  check  it  is  apparent  that  it  was- 
not  drawn  in  the  usual  course  of  business,  that  it  was  not  a  commer- 
cial check,  a  cashier  has  no  authorit}'  to  certify  such  a  check,  and  such- 
certificate  is  not  binding  upon  the  bank,  nor  can  it  be  made  so  by  any 
subsequent  acts  of  ratification  by  said  cashier.     Dorsey  v.  Abrams,  85- 
Penn.  299. 

1101.  If  a  customer  of  a  bank  hands  the  receiving  teller  a  check 
drawn  by  another  person  upon  the  same  bank,  and  at  the  same  time 
hands  him  his  pass  book,  and  the  teller  receives  the  check  and  enters  a 
credit  for  the  amount  in  the  pass  book,  but  no  entry  is  made  on  the 
books  of  the  bank,  and  nothing  else  is  said  or  done,  and  the  drawer  haa 
no  funds  in  the  bank,  the  check  may  be  returned  to  the  depositor  and 
the  credit  in  the  pass  book  canceled.     In  such  a  case,  a  finding  b}'  the 
court  that  the  check  was  received  as  a  cash  deposit  is  erroneous. 
National  Gold  Bank  v.  McDonald,  51  Cal.  64. 

1102.  The  payee  of  a  check  before  it  is  accepted  by  the  drawee 
cannot  maintain  an  action  upon   it  against  the  latter,  as  there  is  na 
privity  of  contract  between  them.     So  held,  where  a  check  of  the 
Treasurer  of  the  United  States  upon  a  national  bank  duly  designated 
as  a  depository  of  the  public  mone}',  having  been  paid  upon  an  un- 
authorized indorsement  of  the  name  of  the  payee,  suit  to  recover  the 
amount  of  the  check  was  brought  by  its  owner  against  the  bank,    first 
National  Bank  of  Washington  v.  Whitman,  94  U.  S.  343. 

1103.  The  rights  of  the  parties  are  not  changed  by  the  fact,  on  a 
settlement  of  accounts  between  the  treasurer  and  the  bank,  the  checkr 
on  the  supposition  that  it  had  been  properly  paid,  was  credited  to  th& 


158  MONROE'S  DIGEST 

bank.     Such  an  error  does  not  effect  the  real  state  of  the  accounts ; 
when  it  is  discovered,  they  are  open  to  correction.     Ibid. 

1104.  Payment  to  a  stranger  upon  an  unauthorized  indorsement 
does  not  operate  as  an  acceptance  of  the  check,  so  as  to  authorize  an 
action  by  the  real  owner  to  recover  its  amounts  as  upon  an  accepted 
•check.     1  bid. 

1105.  A  check  was  drawn  to  Cook  ;  Barnes  indorsed  Cook's  name 
without  his  authority  and  received  the  money  ;  the  bank  deducted  the 
check  from  the  drawer's  account  and  settled  with  him  on  that  basis. 

Held,  that  Cook  could  recover  the  amount  of  the  check  from  the 

bank.     The  conduct  of  the  bank  was  an  acceptance  and  bound  it  as  a 
certified  check  would.     Seventh  National  Bank  \.  Cook,  73  Penn.  483. 

1106.  The  protest  of  a  dishonored  check  is  not  a  written  instru- 
ment which  can  be  made  the  basis  of  an  action,  and  in  an  action  by  the 
payee,  against  the  drawer,  of  such  check,  a  copy  of  the  protest  forms 
no  part  of  the  complaint,  and  cannot  aid  its  averments. 

1107.  If,  in  such  action,  the  complaint  fails  to  aver  that  the  de- 
fendant has  been  notified  of  the  non-payment  of  such  instrument,  or 
alleges  no  excuse  for  the  failure  to  give  such  notice,  it  is  sufficient 
on  demurrer.     Griffin  v.  Kemp,  46  Ind.  172  ;  also,  Pollard,  Adm'r  v. 
Bowen,  57  Ind.  232'. 

1108.  The  same  rule  applies  to  checks  as  does  to  bills  of  exchange 
and  indorsed  promissory  notes,  in  regard  to  the  diligence  to  be  used 
in  presenting  them  for  payment.     See  Edwards  on  Bills  and  Promis- 
sory Notes,  pages  57,  389,  391  and  890  ;   also,  decision  in  57  Ind.  232. 

1109.  A,  check  given  to  carry  out  an  agreement  made  in  con- 
travention of  the  provision  of  the  Bankrupt  Act  (§  45),  prohibiting 
officers  of  courts  in  bankruptcy  from  taking  anything  other  than  the 
fees  allowed  by  the  act  for  acts  done  under  it,  is  not  absolutely  void ; 
notwithstanding  the  illegality  of  the  consideration,  it  is  valid  in  the 
hands  of  a  bona  fide  holder  for  value,  taking  it,  before  it  is  dishonored, 
without  notice  of  its  illegality.     The  burden  of  showing  that  the  trans- 
feree had  notice  of  the  infirmity  in  the  paper  is  upon  the  party  seeking 
to  impeach  his  title.     Cowing  v.  Altman,  71  N.  Y.  435. 

1110.  Checks  are  not  money  and  a  board  of  county  commissioners 
has  no  right  or  authority,  in  their  settlement  with  treasurer,  as  pro- 
vided by  statute,  to  accept  and  count  as  monej'  the  checks  of  third 
parties.     Commissioners  v.  McCormick,  4  Mont.  115. 

1111.  Where  a  bank  directs  checks  drawn  upon  it  to  be  presented 
for  payment  to  another  bank,  if  a  check  be  there  presented  and  pay- 
ment refused,  the  drawer  is  discharged,  if  notice  of  non-pa}Tment  be  not 
given,  though  the  check  be  presented  to  the  drawees  on  the  following 
day,  but  they  had  failed  in  the  interim.     East  River  Bank  v.  Gedney, 
4  E.  D.  Sm.  582. 

1112.  If  the  bank  on  which  a  check  is  drawn,  be  enjoined  from 
making  any  payments  by  an  injunction  out  of  chancery,  half  an  hour 
after  being  opened  for  business,  on  the  day  following  that  on  which  it 
was  given,  the  holder  is  excused  from  presentment,  and  may  recover 
on   the  original  consideration.     Lovett  v.  Cornwall,  6  Wend.  369  ;  S. 
C.,  1  Hall,  56. 

1113.  A  check  drawn  in  the  ordinary  form,  not  describing  any 
particular  fund,  or  using  any  words  of  transfer  of  the  whole  or  any 


OF  STANDARD  DECISIONS.  159 

part  of  any  amount  standing  to  the  credit  of  the  drawer,  does  not 
operate  as  an  assignment,  equitable  or  otherwise,  of  funds  of  the 
drawer,  in  the  hands  of  the  drawee ;  and  it  is  immaterial  that  the 
drawee  is  not  a  bank.  In  re  Merrill,  71  N.  Y.  325. 

1114.  The   holder  of  a  check,  on  whom  it  has  been  fraudulently 
passed,  in  payment  >of  a  preexisting  debt,  is  not  bound  to  present  it, 
before  bringing  suit  on  his  original  cause  of  action.     Devoe  v.  Moff'att, 
Anth.  N.  P.  221. 

1115.  A  check,  it  is  true,  is  a  payment  until  presented  and  refused  ; 
but  a  bill  is  payment  only  if  it  be  so  agreed,  and  if  payment  by  bill  be 
part  of  the  agreement,  it  must  be  evidenced  in  writing.     Chitty,  681. 
Mahalen  v.  The  Dublin  &  Chapelized  Distillery  Co.,  2  Irish  Reports, 
dommon  Law  Series,  83. 

1116.  A  verbal  agreement  between  the  payee  and  the  drawer  of  a 
check,  contemporaneous   with    its   execution  and  delivery,  that  the 
former  will  not  present  it  to  the  drawee  for  payment  until  a  certain 
time,  is  sufficient  excuse  for  a  delay  until  the  time  specified  in  present- 
ing it  for  payment.     Demand  for  the  payment  of  a  check,  and  notice 
of  non-payment  of  the  same,  are  no  part  of  the  contract  between  the 
drawer  and  payee,  but  are  steps  in  the  legal  remedy  of  the  latter. 
Pollard,  Adm.  v.  Bowen,  57  Ind.  232. 

1117.  No  protest  for  non-payment  of  a  check  drawn  upon  a  bank 
is  necessary  to  render  the  drawee  liable  to  payee.     Pollard  v.  Bowen,  57 
Ind.  232. 

1118.  The  date  of  a  check  is  prima  facie  evidence  of  the  time  it 
was  made  and  had  its  inception  ;  and  if  found  in  the  hands  of  the  payee 
or  third  person  for  a  considerable  time  (in  this  case  fourteen  months) 
after  its  date,  will  be  deemed  to  be  discredited.     A  party  taking  it  is 
put  upon  inquiry,  and,  in  the  absence  of  explanation,  takes  subject  to 
any  defence  existing  as  between  the  payee  and  drawer. 

1119.  Check,  however,  has  no  inception  until  delivery,  and  for  all 
legal  purposes  is  to  be  considered  as  made  on  the  day  it  is  delivered ; 
•when  the  date  and  the  time  of  the  delivery  are  not  the  same,  the  latter 
may  be  shown  in  answer  to  any  such  defence.     A  party  negotiating  for 
it,  who  ascertains  that  the  check  was  in  fact  delivered  on  the  day  it  is 
offered  to  him,  is  not  bound  to  go  further  and  inquire  as  to  any  other 
objection  to  it ;  and  if  he  takes  it  bona  fide,  for  value,  without  notice 
of  illegality  or  other  defence,  and  it  appeal's  that  it  was  in  fact  deliv- 
ered on  the  day  it  was  negotiated,  he  stands  in  no  worse  position  than 
if  he  had  first  inquired  and  been  informed  of  this  fact.     When,  there- 
fore, a  check  is  delivered  by  the  drawer  to  the  payee  long  after  its  date, 
and  is  upon  the  same  day  transferred  by  the  latter  to  a  bona  fide  pur- 
chaser for  value  without  notice  of  any  defence,  it  is  valid  in  his  hand, 
notwithstanding  a  defect  or  illegality  in  the  consideration  which  would 
be  a  good  defence  as  between  the  drawer  and  payee.     Ibid. 

1120.  Accordingly,  held,  where,  in  pursuance  of  an  arrangement 
between  an  assignee  in  bankruptcy  and  creditors,  a  check  for  addi- 
tional compensation  over  and  above  his  fees,  dated  on  the  day  it  was 
made,  was  deposited  with  a  third  person,  to  be  delivered  to  the  payee 
when  he  was  discharged  from  his  position  as  assignee,  which  check 
remained  in  the  hands  of  the  depository  for  fourteen  months,  and  was 
then  delivered  upon  the  order  of  the  payee,  on  the  day  the  latter  was 


160  MONROE'S  DIGEST 

discharged  as  assignee,  to  a  bona  fide  purchaser  from  him  for  value, 
that  the  check  had  inception  only  on  delivery,  and  that,  in  the  absence 
of  evidence  of  notice  to  the  purchaser,  of  any  defence,  he,  or  his  trans- 
feree, could,  upon  its  being  presented  for  payment  and  dishonored, 
enforce  it  against  the  drawer.  Cowing  v.  Altman,  71  N.  Y.  435. 

1121.  An  order,  check  or  draft,  to  have  the  effect  of  an  equitable 
assignment,  must  be  drawn  on  a  particular,  specified  fund.     In  re 
Merrill,  71  N.  Y.  325. 

1122.  Accordingly,  held,  where  an  insurance  company  gave  it» 
check  upon  a  trust  company,  in  payment  of  a  loss,  the  company  having 
at  the  time  on  deposit  a  sum  exceeding  the  amount  of  the  check,  but,, 
prior  to  its  presentation,  a  receiver  of  the  company  was  appointed, 
who  withdrew  all  the  funds  deposited,  that  the  check,  not  having  been 
drawn  on  a  particular  fund,  did  not  operate  as  an  equitable  assignment 
pro  tanto  of  the  deposit ;  and  that,  the  claim  having  been  only  liqui- 
dated, not  paid,  when  the  company  failed  and  went  into  the  hands  of 
the  receiver,  whereby  the  rights  of  all  the  creditors  became  fixed  by 
the  statute,  the  payee  of  the  check  was  not  entitled  to  have  the  same 
paid  by  the  receiver  out  of  the  funds,  in  preference  to  the  claims  of 
other  creditors.     Also,  held,  that  the  fact  that  there  was  a  receipt  on 
the  back  of  the  check — intended  for  the  signature  of  the  payee — did 
not  effect  its  negotiability  of  the  particular  fund.     In  re  Merrill,  71 
N.  Y.  325. 

1123.  Where  money  is  paid  on  a  "  raised  "  check  by  mistake,  neither 
party  being  in  fault,  the  general  rule  is  that  it  may  be  recovered  back 
as  paid  without  consideration.     Espy  v.  Bank  of  Cincinnati,  18  Wal- 
lace, U.  S.  604. 

1124.  A  person  intrusted  with  a  check  by  the  payee  to  pay  into- 
bank  absconded  with  it,  and  after  altering  the  date  from  the  2d  of 
March  to  the  26th  of  March,  passed  it  to  the  plaintiff  for  value.     The 
check  was  not  paid  and  the  plaintiff,  who  had  not  been  guilty  of  any 
negligence  in  taking  the  check,  sued  the  drawer.     Held,  that  the  alter- 
ation was  material  and  invalidated  the  check  ;  and  that  the  circumstance 
that  the  plaintiff  had  not  been  guilty  of  negligence  in  taking  it  was 
immaterial.      Vance  v.  Lowther,  1  L.  R.,  Exch.  Div.  176;  45  L.  J.r 
Exch.  Div.  200 ;  34  L.  T.  N.  S.  286 ;  24  W.  R.  372. 

1125.  Unless  there  is  something  in  the  term  in  which  information 
is  asked  that  points  the  attention  of  the  bank  officer  beyond  these  two- 
matters,  his  verbal  response  that  the  check  is  "  good  "  or  "  all  right  'r 
will  be  limited  to  them,  and  will  not  extend  to  the  genuineness  of  the 
filling-in  of  the  check  as  to  payee  or  amount.     Ibid. 

1126.  Where  a  party  to  whom  such  a  check  is  offered  sends  it  to 
the  bank  on  which  it  is  drawn,  for  information,  the  law  presumes  that 
the  bank  has  knowledge  of  the  drawer's  signature  and  of  .the  state  of 
his  account,  and  it  is  responsible  for  what  he  replied  on  these  points- 
Ibid. 

1127.  The  drawer  of  a  check  made  pa}Table  to  the  order  of  the 
payee,  is  not  bound  by  a  payment  thereof  by  the  bank,  upon  a  forged 
indorsement  of  the  name  of  the  payee  ;  it  is  bound,  before  payment,  to 
ascertain   the  genuineness  of  the  indorsement.      Welsh  v.  Ger.  Am~ 
Bank,  73  N.  Y.  App.  424. 

1128.  A  depositor  owes  no  duty  to  a  bank  requiring  him  to  ex- 


OP   STANDARD   DECISIONS.  161 

araine  his  pass  book,  or  returned  checks,  with  a  view  to  the  detection 
of  forgeries  in  the  indorsements.  He  has  a  right  to  assume  that  the 
bank,  before  paying  his  checks,  will  ascertain  the  genuineness  of  the 
indorsement.  Ibid. 

1129.  A  dishonored  check  need  not  be  protested  to  bind  the  maker, 
Henshaw  v.  Root,  60  Ind.  220. 

1130.  A  check  on  a  banker  is  a  negotiable  instrument  and  the  in- 
dorser  is  liable  to  the  holder.     Keene  v.  Beard,  XC.  VIII.  372;  8  C. 
B.  N.  S.  372.     (Eng.  Com.  Law.) 

1131.  Where,  in  an  action  against  a  partnership,  on  a  dishonored 
check,  executed  in  the  firm  name,  the  execution  of  the  check  is  not 
denied  by  plea  under  oath,  and  the  check  is  introduced  in  evidence 
without  objection,  the  existence  of  the  partnership  is  thereby  admitted. 
Where,  in  an  action  against  a  partnership,  the  existence  of  the  partner- 
ship may  be  inferred  from  the  evidence,  a  finding  of  that  fact  will  not 
be  disturbed  for  want  of  direct  evidence  thereof.     Henshaw  v.  JRootf 
60  Ind.  220. 

1132.  In  an  action  against  the  maker  on  a  dishonored  check,  the 
complaint,  setting  out  a  copy  thereof,  alleged  its  execution  and  delivery, 
its  presentation  on  the  day  it  was  issued  for  payment,  its  dishonor  and 
notice  thereof  to  the  defendant ;  and  that  the  defendant  at  the  time  of 
its  issue  had  no  funds  deposited  for  its  payment.     Held,  on  demurrer, 
that  the  complaint  is  sufficient.     Mere  delay  in  giving  notice  to  maker 
of  the  dishonor  of  his  check  does  not  discharge   him  from  liability 
thereon,  but  he  is  entitled  to  whatever  damage  he  may  suffer  by  reason 
of  such  delay.     Henshaw  v.  Root,  60  Ind.  220. 

1133.  A  check  may  be  offered  in  evidence  under  the  money  counts  j 
and  if  there  is  no  other  evidence  in  the  case,  it  is  of  itself  sufficient  to- 
entitle  the  plaintiffs  to  recover  on  those  counts  ;  yet  it  is  only  prima 
facie  evidence  of  money  lent,  paid  a'nd  advanced,  or  had  and  received ; 
and  where  it  is  proved  that  no  money  had  come  to  the  hands  of  defend- 
ant, the  presumption  raised  by  the  check,  is  rebutted,  and  no  recovery 
can  be  had  on  these  counts.     Blair  &   Hoge  v.  Wilson,  28   Grattan 
(Va.)  165. 

1134.  The  rights  of  a  checkholder  and  of  the  bank  are  fixed  when 
the  check  is  presented  for  payment,  and  the  bank  has  no  right  to  pay 
or  satisfy  out  of  the  fund  thus  appropriated  other  checks  or  demands 
subsequently  presented,  or  demands  which  subsequently  accrued  to  the 
bank  or  others;  nor  can  the  bank  retain  the  money  against  the  check 
holder,  under  claim  of  an  equitable  lien  for  a  debt  by  the  drawer  of  the 
check  not  yet  matured.      Zelle,  et.  al.  v.  German  Savings  Inst.,  4  Mo. 
Appeal  Reports  (St.  Louis)  401. 

1135.  Where  a  check,  given  in  pa3rment  of  a  debt,  is  dishonored, 
action  need  not  be  brought  for  such  debt,  but  may  be  maintained  on 
the  check.     Henshaw  v.  Root,  60  Ind.  220. 

1136.  The  holder  of  a  check,  by  the  mere  fact  of  its  being  drawn 
in  his  favor,  acquires  no  right  of  action  in  equity,  as  upon  an  equitable 
assignment,  against  the  person  upon  whom  it  is  drawn.     To  an  action 
by  plaintiffs  against  defendants  for  their  refusal  to  pay  a  check,  drawn 
by  plaintiffs  and  one  W.  on  them,  defendants  pleaded,  on  equitable 
grounds,  that  before  the  drawing  or  presentment  of  the  check  in  ques- 
tion the  plaintiffs  and  W.  had  drawn  and  delivered  to  various  persons 

11 


162  MONROE'S  DIGEST 

certain  other  checks,  amounting  in  all  to  the  whole  of  their  funds  in 
defendants'  hands,  which  were  presented  before  this  check  ;  that  neither 
at  the  time  of  the  drawing,  nor  presentment  of  the  first-drawn  checks 
or  the  check  in  question,  had  defendants  more  than  sufficient  funds  in 
their  hands  to  pay  the  first-drawn  checks,  as  the  plaintiffs  and  W.  well 
knew ;  and  that  afterwards,  and  before  the  commencement  of  this 
notion,  defendants  paid  the  holders  of  the  first-drawn  check  the  amounts 
thereof,  and  thereby  paid  and  disbursed  all  the  plaintiffs'  and  W.'s 
moneys  in  their  hands,  and  afterwards  settled  with  the  plaintiffs  and 
W.  their  banking  account  in  full.  Held,  plea  bad,  for  the  previous 
presentment  and  dishonor  of  the  first-drawn  checks  not  creating  afty 
lien  on  the  funds,  and  it  being  admitted  that  at  the  time  of  the  pre- 
sentment of  the  checks  in  question  there  were  sufficient  funds  to  meet 
it,  such  funds  were  applicable  to  its  payment ;  and  moreover,  it  was 
•quite  consistent  with  the  plea  that  at  the  time  of  the  presentment  of 
the  first-drawn  checks  defendants  had  no  funds  to  meet  them,  and  that 
after  their  dishonor  they  were  placed  in  funds  when  the  check  in  ques- 
tion was  presented  and  dishonored,  and  that  the  first-drawn  checks 
were  then  presented  a  second  time  and  honored.  Caldwell  v.  Mer- 
chants' Bank,  26  Upper  Canada,  Com.  Pleas,  294. 

1137.  While  the  giving  of  a  check  by  a  debtor  to  a  creditor  is 
generally  presumed  to  be  only  a  provisional  or  conditional  payment  of 
the  debt  for  which  it  was  given,  yet  such  check  may,  by  agreement  of 
parties,  be  given  and  received  in  full  payment  and  absolute  discharge 
and  satisfaction  of  the  debt ;  and  whether  it  was  so  given  or  received 
is  a  question  of  fact  for  the  jury.     Blair  &  Hoge  v.  Wilson,  2  G  rattan 
(Va.)  321. 

1138.  Where  a  person  has  voluntarily,  i.  e.,  without  the  coercion 
of  force  or  threats,  given  his  promissory  note  to  compound  a  crime, 
and  has  been  compelled  to  pay  the  same,  it  having  been  transferred  to 
.&  bona  fide  holder  for  value  before  maturity,  he  cannot  maintain  an  ac- 
tion against  the  one  to  whom  the  note  was  so  given  to  recover  back 
the  moneys  paid.     Haynes  v.  Rudd,  83  N.  Y.  251. 

1139.  A  check  is  a  bill  of  exchange  within  the  statute  (1  R.  S. 
768,  §  6),  declaring  that  no  person  shall  be  charged  as  acceptor  of  a 
bill  of  exchange  unless  his  acceptance  is  in  writing.     JRisley  v.  Phenix 
Bank,  83  N.  Y.  318. 

1140.  A  verbal  promise  by  a  bank,  therefore,  to  pay  a  check,  does  not 
create  a  cause  of  action  thereon.     Risley  v.  Phenix  Bank,  83  N.  Y.  318. 

1141.  Where  a  debtor  pays  his  debt  by  a  check  to  the  order  of  his 
creditor  of  one  nominated  by  the  latter,  and  the  check  is  lost  by  or 
fraudulently  obtained  from  the  creditor,  and  is  paid  to  the  finder  or 
fraudulent  holder  on  a  forged  indorsement  of  the  payee,  the  debtor  is 
not  discharged  and  may  be  again  called  upon  to  pay  his  debt ;  at  least 
unless  the  check  was  taken  in  absolute  payment  and  extinguishment 
thereof.     Thomson  v.  Bank  of  British  N.  Am.,  82  N.  Y.  1. 

1142.  A  check  payable  to  order  may  be  transferred  by  the  payee 
"by  parol,  with  manual  delivery  without  indorsement,  but  the  transferee 
in  such  case  acquires  only  the  rights  he  would  have  had,  had  the  check 
been  original^  non-negotiable,  i.  e.,  the  right  which  the  payee  had  in 
it  at  the  time  of  the  transfer.     Freund  v.  Im.  and  Traders'1  Nat.  Bank, 
76  N  Y.  352, 


OF   STANDARD  DECISIONS.  163 

1143.  Neither  the  fact  that  a  check  was  dishonored  when  trans- 
ferred, nor  that  presentment  for  payment  has  been  delayed,  discharges 
the  drawer.     If  dishonored,  any  defence  thereto  against  the  payee  will 
be  available  against  his  transferee  ;  but  no  presumption  arises  that 
overdue  or  dishonored  paper  is  invalid.     If  loss  results  to  the  drawer 
by  delay  in  presentment,  that  is  matter  of  defence.     Cowing  v.  Alt- 
man,  79  N.  Y.  167. 

1144.  The  bank  certifying  a  check  is  primarily  liable  for  its  pay- 
ment.    A  bank  or  agent  for  collection  of  a  certified  check  should  not 
.send  such  check  to  certifying  bank  itself  for  payment.     This  would  be 
putting  the  instrument  in  the  hands  of  the  party  primarily  liable  and 
enabling  him  to  destroy  the  evidence  of  debt  and  repudiate  the  trans- 
action.    This  would  not  be  using  reasonable  care.     Drover's  Nat.  Bank 
•of  Union  Stock  Yards,  III.  v.  Anglo-American  Packing  and  Provision 
Co.,  7  N.  E.  Rep.  601 ;  Citing — Merch.  Nat.  Bank  v.  Goodman,  2  Atl. 
Rep.  687  ;  Bickford  \.  First  Nat.  Bank,  42   111.   242  ;  zee—Indig  v. 
Vity  Bank,  80  N.  Y.  106. 

1145.  By  certifying  a  check  a  bank  undertakes  only  that  the  sig- 
nature is  genuine  ;  that  the  plaintiff  has  sufficient  funds  in  the  bank 
to  meet  it ;  and  that  such  funds  shall  not  be  withdrawn.     Security 
Bank  v.  Nat.  Bank  of  the  Republic,  67  N.  Y.  458. 

1146.  A    bank  is  liable  on  a   check  certified  by  it  whether  the 
•drawer  had  funds  sufficient  or  not.     French  v.  Irwin,  4  Baxt.  401. 

1147.  Payee  of  check  cannot  maintain  action  against  drawer  with- 
out  acceptance.     Bank   v.    Whitman,  4    Otto.   U.   S.  343 ;    Bank  v. 
Millard,  10  Wallace,  U.  S.  152  ;  3  Cent.  Law  Journal,  46  (Jan.  21, 
1876.) 

1148.  Quite   a  difference  between  checks  and  bills  of  exchange. 
Lester  v.  Gibbon,  8  Bush.  360. 

1149.  Checks  are  not  entitled  to  days  of  grace.     Am.  Law  Reg. 
Jan.    1873;   Champion  v.  Gordon,  (Supct.  Pa.);  Buckner  v.  Say  re, 
18  B.  Mon.  745. 

1150.  Death  of  drawer  rescinds  authority  of  bank  to  pay  check. 
.3  Man.  and  Gr.  471 ;  Chitty  on  Bills,  479. 

1151.  The   transferee,  however,  in   such   case,  acquires  only  the 
rights  he  would  have  had,  had  the  check,  been  originally  non-negotia- 
ble, i.  e.,  the  right  which  the  payee  had  in  it  at  the  time  of  the  transfer. 
Freund  v.  Im.  &  Tr.  Nat.  Bank,  76  N.  Y.  352. 

1152.  A  check,  payable  to  order,  may  be  transferred  by  the  payee 
by  parol,  with  manual  delivery,  without  indorsement.     Freund  v.  Im. 
&  Tr.  Nat.  Bank,  76  N.  Y.  352. 

1153.  Plaintiffs  drew  their  check  upon  defendant's  bank,  payable 
to  the  order  of  M.  0.  &  Sons,  and  delivered  it  to  the  payees,  for  their 
accommodation,  and  without  restriction  as  to  the  use  of  it;  the  payees 
delivered  it  un indorsed  to  N.  B.  &  Sons,  in  payment  of  a  prior  indebt- 
edness, and  it  was  so  applied.     N.  B.  &  Sons  procured  the  check  to  be 
•certified  by  defendant ;  afterwards  plaintiff  notified  defendant  not  to 
pay  it ;  defendant,  however,  paid  it  to  N.  B.  &  Sons.     In  an  action  by 
plaintiffs  to  recover  the  amount  so  paid,  as  a  balance  of  their  deposits: 
Held,  that  at  the  time  of  the  certification  N.  B.  &   Sons  were  the 
owners  of  the  check,  with  the  right  to  enforce  it  against  the  drawers, 
the  existing  debt  being  a  sufficient  consideration  for  the  transfer ;  that 


164  MONROE'S  DIGEST 

the  certification,  therefore,  had  the  same  legal  effect  as  if  the  check  had 
been  properly  indorsed  ;  that  by  the  certification  defendant  became 
bound  to  pay ;  and  that  therefor  the  action  was  not  maintainable. 
Freund  v.  Im.  &  Tr.  Nat.  Bank,  76  N.  Y.  352. 

1154.  When  action  maintainable  against  bank  by  drawer  of  check 
to  recover  amount  paid  thereon,  when  it  has  been  lost  or  fraudulently 
obtained  from  payee  and  his  indorsement  forged.  Thomson  v.  Bank 
British  No.  Am.,  82  N.  Y.  1. 

1155  In  action  on  check  against  drawer,  presumption  in  favor  of 
its  validity,  and  burden  is  upon  defendant  to  show  want  of  considera- 
tion. Raubitschek  v.  Blank,  80  N.  Y.  478. 

1156.  Where  the  holder  of  a  promissory  note,  ostensibly  acting  for 
himself,  sells  the  same  for  a  valuable  consideration,  and  upon  the  saler. 
promises  orally  that  the  note  is  good  and  will  be  paid  at  maturity,  the 
promise  is  not  within  the  statute  of  frauds,  and  the  promissor  is  liable 
thereon  in  case  of  non-payment.     Milks  v.  Rich,  80  N.  Y.  269. 

1157.  Defendant  and  H.  negotiated  for  the  exchange  of  certain  real 
estate ;  the  terms  were  agreed  upon  verbally  by  them ;  defendant  was 
to  pay  a  sum  agreed  upon  as  the  difference  in  the  values  of  the  lands 
to  be  exchanged  ;  he  gave  to  H.  a  check  for  $500,  as  a  payment,  receiv- 
ing therefor  a  receipt  signed  by   H.     In  an  action   upon  the  checkr 
parol  evidence  was  given  as  to  the  contents  of  the  receipt,  it  having" 
been  lost,  which  was  to  the  effect  that  it  stated  that  the  check  was  re- 
ceived on  account  of  the  exchange  of  said  lands,  specifying  them,  and 
then  stated  the  terms,  i.  e.,  the  price  of  each  piece  of  property,  the 
amount  of  mortgages  to  be  executed,  etc. ;  it  did  not  appear  that  the 
terms  of  credit  were  specified.     Defendant  thereafter  refused  to  enter 
into  a  written  contract,  as  was  agreed,  and  stopped  payment  of  the 
check.     Held,  that  the  burden  was  upon  defendant  to  show  a  failure  or 
consideration ;  that  as  it  did  not  appear  that  the  terms  of  credit  were 
not  in  the  receipt,  as  every  presumption  was  in  favor  of  the  validity 
of  the  check,  this  was  to  be  presumed ;  that  the  receipt  taken  in  con- 
nection with  the  check  contained  the  material  elements  of  a  contract,, 
sufficient  and  valid  under  the  statute  of  frauds,  and  enforceable  in 
equity  against  H. ;  and  that,  therefore,  there  was  a  good  consideration 
for  the  check.     Raubitschek  v.  Blank,  80  N.  Y.  478. 

1158.  Plaintiff  held  the  check  as  assignee  of  H.,  who  died  prior  to 
the  trial.     Held,  that  defendant  was  incompetent,  under  section  399  of 
the  Code  of  Procedure,  to  testify  to  the  personal  transactions  between 
him  and  H.     Raubitschek  v.  Blank,  80  N.  Y.  478. 

1159.  B.  P.  &  Co.,  being  indebted  to  plaintiff,  gave  to  it  their  check 
in  settlement  of  the  balance  due ;  the  check,  on  presentation,  was  dis- 
honored  for  want  of  funds ;  it  was  presented  to  the  bank  on  several, 
subsequent  occasions  but  was  not  paid,  and  said  firm  at  no  time  had 
funds  in  the  bank  to  pay  it.     Defendant  executed  a  note  for  the  ac- 
commodation of  one  W.,  who  indorsed  it  before  maturity  to  said  firm,, 
by  whom  it  was  delivered  to  plaintiff  in  part  pa^yment  of  their  debt ; 
plaintiff,  at  the  time,  surrendered  the  check.     Held,  that  such  surrender 
did  not  constitute  plaintiff  a  bona  fide  holder  for  value  so  as  to  shut 
out  the  defence  that  the  note  was  wrongfully  diverted,  by  the  payees, 
from  the  purpose  for  which  it  was  made.     Phoenix  Ins.  Co.  v.  Church,. 
81  N.  Y.  218. 


OF   STANDARD   DECISIONS.  165 

1160.  The  authorities  holding  that  the  surrender  by  a  creditor  of 
the  debtor's  own  note,  on  receiving  the  negotiable  note  of  a  third  per- 
son is  a  parting  with  value,  collated  and  distinguished.     Phoenix  Ins. 
Co.  v.  Church,  81  N.  Y.  218. 

1161.  A  check  is  not  an  equitable  assignment  of  the  drawer's 
balance  at  his  bankers.     Hopkins  v.  Forster,  19  English  L.  R.  Eq.  74; 
23  W.  II.  301  R. 

1162.  To  a  declaration  on  a  check,  the  defendant  pleaded  that  he 
-was  induced  to  sign  a  check  by  the  fraud  of  the  plaintiff'.     Held,  that 
the  plea  imported  an  allegation  that  the  defendant,  on  discovering  the 
fraud,  disaffirmed  the  contract,  and  that  the  defendant  was  not  entitled 
to  a  verdict  on  a  traverse  of  the  plea,  it  appearing  that  he  had  not  dis- 
affirmed the  contract.     Dawes  v.  Harness,  44  L.  J.  C.  P.  194 ;  33  L.  T. 
N.  S.  159  English  Reps. 

1163.  A  creditor  to  whom  a  check  or  other  negotiable  security  is 
given  on  account  of  a  preexisting  debt,  holds  it  by  an  iudefencible 
title,  whether  it  is  payable  at  a  future  time  or  on  demand.     Currie  v. 
Misa,  44  L.  J.  Exch.  94;  10  L.  R.  Exch.  153;  23  W.  R.  450  Exch. 
Chamber. 

1164.  The  payee  of  a  check  drawn  on  the  Union  Bank  of  London, 
Eng.,  payable  to  him  or  his  order,  indorsed  his  name  on  it,  and  crossed 
it  with  two  lines  and  the  name  of  his  bankers,  the  London  and  county 
bank.     The  check  was  stolen,  and  ultimately  came  into  the  hands  of  a 
bona  fida  holder  for  value,  who  paid  it  to  his  banker,  the  London  and 
Westminster  Bank.     They  presented  it  to  the  Union  Bank  of  London, 
•who,  notwithstanding  the  crossing,  paid  the  amount.     In  an  action  by 
the  payee  to  recover  the  amount  from  the  Union  Bank  of  London  : 
Held,  that  although  by  21  and  22  Viet.  C.  79,  §  2,  the  Union  Bank  of 
London  was  bound  to  pay  only  through  the  London  and  county  bank, 
yet  the  payee  had  ceased  to  be   holder  of  the  check,  he  could  not 
recover  either  for  the  breach  by  the  Union  Bank  of  London  of  the  duty 
created  by  the  statute,  or  on' an  allegation  that  they  had  converted  the 
•check.     Smith  v.    Union  Sank  of  London,  44  L.  J.  Q.  B.  117  ;  10  L. 
R.  Q.  B.  291  ;  32  L.  T.  N.  S.  456 ;  23  W.  R.  652 ;  affirmed  on  appeal, 
33  L.  T.  N.  S.  657  C.  A. 

1165.  Bank  is  not  liable  to  pay  check  drawn  thereon  by  a  de- 
positor, except  by  its  acceptance  thereof  in  writing.     Lynch  v.  First 
Nat.  Bank,  107  N.  Y.  179. 


COLLATERAL. 

1166.  A  creditor  who  holds  railroad  bonds  as  collateral  security 
for  a  debt  is  not  bound  by  an  unexecuted  promise  to  the  debtor,  made 
without  consideration,  to  give  them  up.  Nor  does  he  lose  his  right  to 
hold  such  bonds  by  suing  the  principal  debtor  and  recovering  execu- 
tion, and  arresting  the  body  of  the  debtor  thereon.  Smith  v.  Strout, 
€3  Me.  205. 


166  MONROE'S  DIGEST 


COLLECTIONS. 

1167.  When  a  draft  is  indorsed  over  for  collection,  the  indorsee  is- 
not  a  bona  fide  holder  for  value,  though  a  creditor  of  the  indorser. 
Philbrick  v.  Dallett,  2  J.  &  Sp.  370 ;  S.  C.,  43  How.  N.  Y.  409. 

1168.  Liability   for  moneys  collected  by   subagents.     Collection* 
agents,  to   whom  notes  are  intrusted  for  collection,  are  liable  for  mon- 
eys received  by  attorneys  employed  by  them,  and  which  are  not  paid 
over,  although  the  receipt  given  for  claims  when  deposited  for  collec- 
tion states  :  "  avails  are  to  be  promptly  paid  over  on  receipt  by  us." 
Held,  that  the  defendants'  true  relation  and  liability  are  not  at  all  af- 
fected  by  this  language.     The   money   was  received  by  them  in  law 
when  collected  by  the  subagent.     The  receipt  was  intended  as  an  as- 
Burance  of  prompt  payment  over  and  nothing  more.     Mondel,  et  al.  v. 
Mower,  et  al.,  55  Howard,  N.  Y.  242. 

1169.  An  attorney -at-law,  employed  to  collect  a  debt,  may  receive 
payment  thereof  in  money,  but  has  no  right  to  accept  anything  else  in 
satisfaction  without  express  authority  from  his  client,  and  if  he  does 
it  will  be  no  payment  unless  ratified  or  assented  to  by  his  client.     He 
cannot  give  the  debtor  an  acquittance  of  the  claim  by  receiving  pay- 
ment thereof  in  a  debt,  he,  the  attorney,  owes  the  debtor. 

1170.  He  has  no  right  to  accept  notes,  bonds,  etc.,  of  the  debtor,, 
as  collateral  security  for  the  debt,  without  express  authority  from  hi& 
client,  and  if  he  does  so,  his  client  will  not  be  bound  unless  he  assents- 
to  or  ratifies  the  same.     If  an  attorney,  without  the  authority  of  his- 
client,  accept  bonds,  etc.,  of  the  debtor,  with  the  understanding  that 
he  is  to  collect   them  and  apply  them  as  paj'ment  on  the  claim  when 
collected,  in  that  transaction  he  is  the  attornej7  of  the  debtor,  and  not 
the  attorney  of  his  original  client.     As  soon,  however,  as  he  receives 
any   money  on  the  claims  thus  put  in  his  hands  for  collection  by  the 
debtor,  it  is  a  payment  to  that  extent,  less  his  fees  for  collecting,  upon 
the  claim  of  his  original   client.      Wiley  v.  Mahood,  et  aZ.,  10  West 
Virginia,  206. 

1171.  A  firm  in  Michigan  left  for  collection  with  the  plaintiffs,  a 
bank  in  that  State,  a  sight  draft  of  their  own  for  $500,  on  "  J.  C., 
treasurer  of  the  M.  S.  Co."  a  manufacturing  corporation  in  Connecti- 
cut.    The  plaintiffs  at  once  sent  the  draft  to  the  defendants,  a  bank  in 
Connecticut,  with  directions  to  "  return  at  once  without  protest  if  not 
paid."     The  defendants  presented  the  draft  to  the  drawee,  and  he  re- 
plied that  he  would  look  up  his  account  with  the  drawers  and  inform 
the  cashier  with  regard  to  payment.     The  drawers  had  also  written  J. 
C.  that  such  a  draft  had  been  forwarded,  and  he  wrote  them  in  reply  : 
"  The  $500  draft  has  been  received  and  paid.     Don't  draw  any  more." 
On  the  receipt  of  this  letter  the  drawers  showed  it  to  the  plaintiffs,, 
who,   believing  the  draft   had   been  duly  paid  the  drawers  the  $500. 
J.  C.,  the  drawee,  was  also  president  of  the  defendant  bank,  and  this 
fact  w<*s  known  to  the  plaintiffs.     The  draft  had  not  in  fact  been  paid, 
though  the  drawee  supposed  it  had,  but  the  defendants  had  neglected 
to  return  it  or  send  notice  of  its  non-payment.     If  they  had  returned 
it  at  once  it  would   have   prevented  the  paj'ment  of  the  $500  to  the 
drawers.     Several  days  later  the  cashier  returned  the  draft  unpaid, 


OF   STANDARD  DECISIONS.  167 

•which  was  his  first  information  to  the  plaintiffs  with  regard  to  the 
matter.  The  plaintiffs  thereupon  demanded  repayment  of  the  drawers, 
which  was  refused.  They  were  solvent,  but  had  no  visible  property, 
and  the  claim  could  not  have  been  collected  without  much  difficulty. 

1172.  Held,  1.  That  the  defendants,  as  agents  of  the  plaintiffs  for 
the  collection  of  the  draft,  had  been  guilty  of  negligence  in  not  ob- 
taining payment  of  the  draft  or  returning  it  at  once  to  the  plaintiffs. 

1173.  2.  That,   although   the   plaintiffs  paid   the   money   to    the 
drawers  upon  the  statement  of  the  drawee  to  the  drawers  that  the 
draft  had  been  paid,  yet,  as  they  would  have  been  saved  from  loss  if 
the  defendants  had  performed  their  duty,  the  defendants  were  liable 
for  the  actual  damages  resulting  from  their  neglect. 

1174.  3.  That  these  damages  were  to  be  regarded  as  the  whole 
amount  paid  by  the  plaintiffs  to  the  drawers,  and  that  they  had   a 
right  to  recover  this  sum,  although  they  had  a  right  of  action  for  the 
whole  amount  against  the  drawers.     Merchants1  and  Manufacturers' 
Bank  v.  Stafford  Bank,  44  Conn.  564. 

1175.  There  can  be  no  legal  compromise  of  a  criminal  charge,  where 
the  person  has  not  been  arrested,  nor  in  any  way  held  to  answer  the 
charge.     In  effecting  a  compromise  of  larceny,  under  the  statute,  the 
person  whose  property  has  been  stolen  has  no  right  to  exact  or  receive 
from   the   person   committing   the   larceny,  anything  more  than  the 
property  stolen  or  its  value,  and  the  necessary  expense  of  reclaiming  it. 
Saxon  v.  Hill,  6  Oregon,  388. 

1176.  The  bank  had  for  collection  a  draft  by  Lane  on  Gibson,  and 
received  $60.40  in  money,  and  a  sight  draft  and  a   ten  days'  sight 
draft  on  B.,  in  settlement  of  L.'s  draft  on  G.    B.  paid  one  draft  and  ac- 
cepted the  other  at  ten  days.     Upon  maturity  the  bank  presented  it  to 
B.  for  payment,  which  was  refused,  and  the  bank  did  not  cause   the 
draft  to  be  protested,  so  as  to  charge  the  drawer.     Held,  that  the 
bank,  by  failing  to  have  the  draft  protested,  has  become  liable  to  L.  for 
the  amount  of  the  draft.     A  bank  which  receives  a  note  or  bill  for  col- 
lection is  bound  to  use  due  and  proper  diligence  in  making  demand, 
and  giving  notice,  and  causing  protests  to  be  made,  so  as  to  hold  all 
parties  liable,  and   in  default  of  such  diligence  the  bank  becomes  re- 
sponsible to  the  party  who  deposited  the  note  or  bill.     Capital  State 
Bank  v.  Lane,  52  Miss.  677. 

1177.  Action  upon  the  note,  held,  that  B.  was  liable  ;  that  her  sig- 
nature would  be  considered  as  having  been  placed  to  the  note  at  its 
date,  and  this  although  B.  did  not  know  of  the  arrangement ;  that  it 
was  sufficient  if  she  signed  at  the  request  of  M.,  who  had  given  the 
assurance.     Harrington  v.  Brown,  77  N.  Y.  72. 

1178.  Plaintiff  sent  to  defendant,  its  correspondent  in  the  cit%y  of 
New  York,  for  collection  and  credit,  a  sight  draft,  drawn  by  a  bank  in 
Meadville,  Pa.,  upon   C.  P.  &  Co.,  bankers  in  that  city ;  on  the  morn- 
ing of  its  receipt  defendant  presented  it  to  the  drawees  for  payment, 
received  their  check  for  the  amount,  and  delivered  the  draft  to  them. 
Defendant  did  not  present  the  check  for  payment  on  that  day  ;  it  was 
presented  the  next  day,  when  the  bank  refused  to  pay,  C.  P.  &  Co.y 
having  failed.     Defendant  on  the  same  day  returned  the  check  to  C. 
P.  &  Co.,  received  back  the  draft,  formally  demanded  payment  thereof, 
caused  the  same  to  be  protested  for  non-payment,  and  on  the  next  day  due 


168  MONROE'S  DIGEST 

notice  of  non-payment  was  served  by  mail  upon  plaintiff  and  upon  the 
drawer.  In  an  action  to  recover  damages  for  alleged  negligence  on 
the  part  of  defendant,  held,  that  it  was  the  duty  of  defendant  to  have 
presented  the  check  for  payment  or  certification  as  soon,  as  with  rea- 
sonable diligence,  it  could,  and  that  for  any  damages  arising  from  the 
delay  in  presentation  it  was  liable.  First  Nat.  Bank  of  M.  v.  Fourth 
N.  Bank  of  N.  Y.,  77  NY.  320. 

1179.  It  appeared  that  the  account  of  C.  P.  &  Co.,  at  the  bank, 
upon  which  the  check  was  drawn,  was  largely  overdrawn  on  the  day 
when  the  check  was  received  by  defendant,  but  it  appeared  that  the 
bank  had  been  in  the  habit  of  allowing  them  to  overdraw  during  any 
day,  they  depositing  collaterals  or  making  the  account  good  when  made 
up  the  next  day,  and  that  the  bank  paid  all  checks  down  to  the  failure 
of  C.  P.  &  Co.,  and  among  them  checks  drawn  after  the  one  given  to 
defendant.      Held,   that   the   facts  justified   the   conclusion   that   the 
check   in  question  would  have  been   paid  had  it  been  promptly  pre- 
sented.    First  Nat.  Bank  of  M.  v.  Fourth  N.  Bank  of  N.  F.,  77  N. 
Y.  320. 

1180.  It  was  alleged  in  the  complaint  that  the  draft  could  be  col- 
lected from  the  drawer  ;  plaintiff  recovered  as  damages,  the  full  amount 
of  the  draft.     Held,  error ;  that  defendant  was  only  liable  for  the  ac- 
tual or  probable  damages  caused  by  its  negligence ;  and  that,  as  suf- 
ficient was  done  by  it  to  charge  the  drawer  who  was  responsible,  de- 
fendant was  only  liable  for  nominal  damages.     First  Nat.  Bank  of  M. 
v.  Fourth  N.  Bank  of  N.  Y.,  77  N.  Y.  320. 

1181.  Also,   held,  that  in   the  absence  of  proof  it  would   be  as- 
sumed that  the  common  law  rule  prevailing  here  also  prevails  in  Penn- 
sylvania, and  that  under  the  law  of  that  State  the  drawer  was  charged 
by  what  was  done  by  defendant.     First  Nat.  Bank  of  M.  v.  Fourth  N. 
Bank  of  N.  Y.,  77  N.  Y.  320. 

1182.  Plaintiffs  sent  to  defendant  for  collection  a  promissory  note 
payable  at  its  bank,  made  by  U.,  one  of  its  customers.     The  note  fell 
due  Sunday,  July  4th,  1875.     On  July  3d,  defendant  marked  the  note 
as  paid  and  sent  to  plaintiff  a  draft  for  the  proceeds.     U.,  at  that  time, 
had   a  small  balance  to  his  credit,  but  not  sufficient  to  pay  the  note. 
On  July  6th,  defendant  having  learned  that  TJ.  had  failed,  stopped 
payment   of  the  draft,  and  requested  plaintiffs  to  return  it,  claiming 
that  it  had  remitted  for  the  note  by  mistake.     Plaintiffs  thereupon  re- 
turned the  draft.     Defendants,  on  July  6th,  also  caused  the  note  to 
be  noted  for  protest,  and  mailed. 


COMITY. 

1183.  In  the  interpretation  of  commercial  contracts,  this  court  will 
be  largely  influenced,  and  guided,  by  the  law  merchant  of  the  United 
States,  and  the  constructions  of  that  law  made  by  the  Supreme  Court 
of  the  United  States.  Chaffraix  &  Agar  v.  Price,  Hine  and  Tupper, 
29  La.  176. 


OF   STANDARD   DECISIONS.  169 


COMMON  CARRIERS. 

1184.  A  carrier  of  freight  who  expressly  contracts  to  deliver  goods 
at  a  destination  beyond  the  terminus  of  his  own  road  is  answerable  for 
the  negligence  of  any  connecting  road  in  the  line  of  transportation. 
Newalt,  et  al.  v.  Smith,  et  al.,  49  Rowell,  Vt.  255. 

1185.  The  duty  of  a  common  carrier  by  water  is  not  fulfilled  by 
simple  transportation  from  port  to  port.     The  goods  must  be  delivered ; 
or  at  least  landed,  and  a  reasonable  opportunity  given  to  the  consignee 
to  inspect  them.      The  Mary  Washington,  1  Abbott,  U.  S.  1. 

1186.  The  general  rules  require  the  carrier  to  notify  the  consignee 
of  the  arrival  of  the  goods.     If  a  carrier  relies  upon  circumstances  as 
-excusing  this  duty,  he  must  prove  them.     Ibid. 

1187.  The  fact  that  after  receiving  such  notice  the  consignee  re- 
fuses to  take  the  goods,  cannot  relieve  the  carrier  from  liability  for 
injury  sustained  by  them  before  that  time.     Ibid. 

1188.  A  discharge  of  goods   upon  the  wharf,  giving  reasonable 
notice  to  the  consignee,  constitutes  a  delivery.     The  Eddy,  5  Wallace, 
U.  S.  481. 

1189.  Where  insurers,  to  whom  the  owners  have  abandoned,  take 
possession,  at  an  intermediate  place  or  port,  of  goods  damaged  during 
tt  voyage  by  the  fault  of  the  carrier,  and  then  sell  them,  they  cannot 
liold  the  carrier  liable  on  his  engagement  to  deliver  at  the  end  of  the 
voyage  in  good  order  and  condition.     Propeller  Mohawk,  9  Wallace, 
TJ.  S.  153. 

1190.  Insurers,  so  accepting  at  the  intermediate  port,  are  liable  for 
freight  pro  rata  itineris  on  the  goods.     Ibid. 


COMMUNITY  OF  PROPERTY. 

1191.  Property  purchased  during  marriage,  whether  in  the  name 
of  the  husband  or  the  wife,  becomes  community  property.     Succession 
of  Carmelite  Planchet,  29  La.  520. 

1192.  After  the  dissolution  of  the  community,  the  husband,  as  its 
former  head,  has  no  power  to  sell,  and  can  convey  title  to  no  greater 
part  of  the  community  property  than  his  undivided  half-interest  in  it. 

W.  W.  Bennett  v.  J.  W.  Fuller,  29  La.  663. 


COMPOSITION. 

1193.  Where  a  party  induced  a  creditor  to  sign  a  composition 
agreement,  whereby  he  accepted  one-half  of  his  claim  in  full,  upon  the 
representation  of  his  debtor  that  no  person  had  received  any  other 
thing,  etc.,  the  fact  that  the  debtor  had  given  his  note  for  $500  to  in- 
duce another  creditor  to  sign  the  same  agreement,  which  note,  upon 
*uit  thereon,  was  adjudged  void,  is  not  sufficient  to  avoid  the  contract 
of  composition,  as  it  worked  no  injury  to  the  creditor.  Bartlett,  et  al.  v. 
Elaine,  83  111.  25. 


170  MONROE'S  DIGEST 

1194.  A  statute  which  imposes  upon  the  stockholders  of  a  corpo- 
ration a  personal  liability  for  the  corporate  debts  must  be  construed 
strictly  ;  it  is  in  derogation  of  the  common  law,  and  cannot  be  extended 
beyond  its  literal  terms.     Chase  v.  Lord,  77  N.  Y.  1. 

1195.  In  law  there  is  not  objection  to  an  agreement  on  the  one 
side  to  pay,  and  on  the  other  to  accept,  a  sum  of  money  less  than  that 
claimed  by  the  creditor  in  satisfaction  of  a  disputed  balance,  and  when 
the  debtor  pays,  the  original  debt  is  discharged.     Me  Call  v.  Nave  52  r 
Miss.  494. 

1196.  Where,  in  an  action  on  an  original  indebtedness,  defendant 
sets  up  and  proves  a  compromise  agreement  and  tender  of  perform- 
ance, the  tender  defeats  the  action,  although  not  kept  good,  and  plain- 
tiff is  not  entitled  to  recover  the  percentage  agreed  to  be  paid  by  the 
compromise  agreement.     See  C.  N.  Bank  v.  Kohner,  85  N.  Y.  189. 

1197.  K.,  defendant's  intestate,  being  indebted  to  plaintiff  and  to- 
two  other  banks,  proposed  a  compromise,  by  paying  or  securing  a  per- 
centage, which  one  or  both  of  the  other  banks  agreed  to  accept  if  plain- 
tiff would.     K.  proposed  to  plaintiffs  cashier  to  secure  the  specified 
percentage  on  its  claim  by  a  note  with  G.  as  indorser.     The  cashier 
thereupon,  after  consultation  with  plaintiff's  president,  and  at  the  re- 
quest of  K.'s  agent,  wrote  to  one  of  the  other  banks,  using  paper  with 
the  bank  heading  and  signing  as  cashier,  to  the  effect  that  plaintiff  pro- 
posed to  take  K.'s  note,  indorsed  by  G.,  for  the  percentage,  and  to  dis- 
charge K.  in  full  on  payment  thereof.     Soon  after  writing,  the  cashier 
informed  the  president  and  they  concluded  not  to  compromise.     Whenr 
therefore,  the  indorsed  note  was  tendered,  the  cashier  refused  to  accept 
it  and  repudiated  the  agreement ;  before  this  was  made  known  to  K. 
he  had  settled  with  the  other  banks  on  the  terms  proposed,  and  had- 
been  discharged.     It  did  not  appear  that  he  owed  any  other  debts.     K. 
afterward  tendered  a  certified  check  for  the  amount  of  the  compromise. 
The  president  and  cashier  were  the  active  managers  of  plaintiffs  bank. 
The  compromise  was  not  repudiated  on  the  ground  of  want  of  author- 
ity of  the  cashier,  and  no  proof  was  given  that  he  acted  without  au- 
thority.    Compromises  were  of  common  occurrence  in  said  bank.     In 
an  action  upon  the  original  indebtedness,  held,  that  the  authority  of 
the  cashier  to  act  was,  under  the  circumstances,  to  be  presumed  ;  that 
the  agreement  made  was  a  valid  composition  agreement,  and  after  per- 
formance by  the  other  creditors  it  was  too  late  for  plaintiff  to  recede. 
Chemical  Nat.  Bank  v.  Kohner,  85  N.  Y.  189. 

1198.  It  seems,  that  had  there  been  proof  that  the  cashier  exceeded 
his  authority  the  question  would  have  been  different.     Chemical  Nat. 
Bank  v.  Kohner,  85  N.  Y.  189. 

1199.  It  is  not  essential  that  a  compromise  agreement  should  be 
in  writing  ;  each  creditor  may  make  a  separate  parol  agreement  for  the 
purpose  of  carrying  the  compromise  into  effect,  and  after  the  agree- 
ment is  once  made  no  creditor  can  withdraw  without  the  consent  of  the 
debtor.     Chemical  Nat.  Bank  v.  Kohner,   85  N.  Y.  189. 

1200.  The  note  and  certified  check  after  tender  and  refusal  were 
destroyed.     Held,  that  plaintiff  having  refused  to  accept  performance 
could  not  allege  non-performance  ;  that  the  tender  was  sufficient  to- 
defeat  a  suit  on  the  original  indebtedness,  and,  after  refusal,  plaintiff 
could  only  put  K.  in  default  by  demanding  the  indorsed  note  asagreed,. 


OF  STANDARD   DECISIONS.  171 

or  the  percentage  in  money.     Chemical  Nat.  Bank  v.  Kohner,  85  N.  Y. 
189. 

1201.  It  seems  that  had  a  suit  been  commenced  on  the  composition 
agreement,  a  claim  that  the  tender  should  have  been  kept  good  would 
have  been  a  good  answer  to  a  defence  based  upon  the  tender.     Chemi- 
cal Nat.  Bank  v.  Kohner,  85  N.  Y.  189. 

1202.  Also  held,  that  plaintiff  was  not  entitled  to  recover  the  per- 
centage of  its  claim  so  agreed  upon,  as  the  action  was  based  solely  upon 
the  original  indebtedness.    Chemical  Nat.  Bank  v.  Kohner,  85  N.  Y.  189. 

1203.  One  who  seeks  to  rescind  a  compromise  of  a  disputed  claim 
on  the  ground  of  fraud  must  promptly,  on  the  discovery  of  the  fraud,, 
restore  or  offer  to  restore  to  the  other  party  whatever  he  has  received 
by  virtue  of  it,  if  of  any  value  ;  the  tender  must  be  without  qualifica- 
tions or  conditions.     Gould  v.  Cayuga  Co.  Nat.  Bank,  86  N.  Y.  75. 

1204.  In  an  action  at  law  upon  the  original  claim,  plaintiff  must 
show  that  he  rescinded  the  fraudulent  compromise  prior  to  the  com- 
mencement of  the  action  ;  if  no  rescission  is  shown  a  final  determina- 
tion by  the  court  that  plaintiff  was  entitled  to  more  than  the  sum  paid 
is  no  answer  to  the  objection.     Gould  v.  Cayuga  Co.  Nat.  Bank,  86- 
N.  Y.  75. 

1205.  A  creditor,  who  in  executing  a  composition  agreement,  has 
been  guilty  of  fraud  in  respect  to  the  other  compounding  creditors,  by 
secretly  stipulating  for  a  preference  to  himself,  may  not  avoid  the 
agreement,  because  of  a  similar  fraud  practiced  upon  him.      White  v. 
Kuntz,  107  N.  Y.  518. 

1206.  The  composition  agreement  is  only  void  as  to  the  innocent 
creditors  executing  it.     Ibid. 

1207.  It  seems  an  innocent  creditor  upon  repudiating  the  compo- 
sition agreement,  is  restored  to  the  right  to  enforce  his  original  claim. 
Ibid. 

1208.  It  seems  that  the  rule  is  different  where  the  compromise  was 
of  an  undisputed  claim.     Gould  v.  Cayuga  Co.  Nat.  Bank,  86  N.  Y.  75. 

1209.  It  seems  also  that  an  equitable  action  to  rescind  may  be 
brought  without  such  restoration,  the  plaintiff  offering,  in  his  com- 
plaint, to   restore,  if  not   entitled  to   retain  what   he   has  received. 
Gould  v.  Cayuga  Co.  Nat.  Bank,  86  N.  Y.  75. 

1210.  It  seems  also  that  the  party  may  retain  what  he  has  received 
and  sue  to  recover  damages  for  the  fraud.     Gould- v.  Cayuga  Co.  Nat. 
Bank,  86  N.  Y.  75. 

1211.  Plaintiff  having  a  claim   against  defendant,  the  C.  C.  N. 
Bank,  for  certain  U.  S.  bonds  loaned  to  it,  which  the  bank  claimed  to 
have  returned,  the  parties  entered  into  a  compromise   by  which  the 
bank  agreed  to,  and  did,  pay  to  plaintiff  $25,000  in  full  satisfaction 
of  the  claim.     In  an  action  upon  the  original  claim,  defendant  set  up 
the  compromise  as  a  defence  ;  also  a  return   of  the  bonds.     Plaintiff 
thereupon  proved  that  the  compromise  was  induced  by  fraud.     It  ap- 
peared that  the  fraud   was  discovered  prior  to  the  commencement  of 
the  action.     At  the  close  of  the  evidence  on  the  trial,  and  after  defend- 
ant had  taken  the  objection  that  plaintiff  had  not  returned  or  offered 
to  return  the  money  paid,  he  paid  into  court  the  amount  thereof,  with 
interest,  with  a  statement  that  the  deposit  was  made  upon  the  condi- 
tions that  it  was  to  be  retained  until  final  judgment,  and  to  be  restored 


172  MONROE'S  DIGEST 

to  plaintiff  unless  the  judgment  determined  that  the  bank  was  entitled 
to  it,  in  which  case  it  should  be  awarded  to  the  bank.  Held,  that  the 
tender  was  insufficient ;  and  that  plaintiff  was  not  entitled  to  recover 
Against  the  bank.  Gould  v.  Cayuga  Co.  Nat.  Bank,  86  N.  Y.  75. 

1212.  Where  a  creditor  is  induced  to  compromise  a  debt  upon  the 
receipt  of  fifty  cents  on  the  dollar,  by  means  of  the  false  and  fraudulent 
representations  made  to  him  by  the  debtor,  that  another  of  his  credi- 
tors has  agreed  to  accept  such  compromise,  the  creditor  may,  upon 
discovering  the  falsity  of  such  representations,  maintain  an  action 
against  the  debtor  to  recover  the  damages  sustained  by  reason  thereof. 
As  in  sucli  an  action  the  damages  sustained  b}'  the  plaintiff  depend 
upon  the  ability  of  the  debtor  to  pay  more  than  a  moietj7  of  his  debts, 
it  is  competent  to  ask  witnesses  for  the  defence  whether  the  defendant 
held   property   or  assets   sufficient    to   pay    over   fifty   cents  on  the 
.dollar  of  his  liabilities.      Whitside  v.  Hyman,  17  N.  Y.  Sup.  Ct.  Reps. 
218. 

1213.  When  an  offence  is  of  such  a  nature  that  the  person  injured 
may  obtain  either  a  civil  or  a  criminal  remedy,  there  is  nothing  unlawful 
in  a  compromise  of  criminal  proceedings  taken  against  the  offender. 
Fisher  v.  Apollinaris  Company,  32  L.  T.  N.  S.   628 ;  23   W.   R.  460  ; 
44  L.  J.  Ch.  300  ;  10  L.  R.  Ch.  297. 

1214.  The  doctrine  that  where  a  debtor  himself,  or  a  near  relative, 
out  of  compassion  for  him,  pays  money  exacted  by  a  creditor  as  a  con- 
dition of  his  signing  a  composition,  he  may  be  regarded  as  having 
paid  under  duress,  and  is  not  equally  criminal  with  the  creditor,  and 
«o  that  he  may  recover  it  back,  if  sound  (as  to  which  quoere),  cannot 
be  invoked  in  favor  of  one  remotely  related  by  marriage  to  the  debtor ; 
it  can  only  be  asserted  in  favor  of  the  debtor  himself,  and  the  wife, 
husband  or  near  relative  of  the  blood  of  the  debtor.     Solinger  v.  Earle, 
S2  N.  Y.  393. 

1215.  Where  a  note  is  given  in  compromise  and  settlement  of  a 
•claim  in  suit,  in  the  absence  of  evidence  of  duress,  or  that  fraud  was 
practiced  in  bringing  about  the  compromise,  or  that  the  plaintiff  knew 
that  the  claim  was  groundless  or  fictitious,  it  is  no  defence  to  an  action 
upon  the  note,  that  there  was  a  good  and  meritorious  defence  to  the 
original  claim.     Feeler  v.  Weber,  78  N.  Y.  334. 

1216.  R.   holding  a  promissory  note,  of  which  P.  was  the  maker, 
.and  L.  the  indorser,  signed  a  composition  deed,  whereby  the  creditors 
of  P.  released  all  claims  against  him,  the  deed  to  be  null  and  void  un- 
less signed  by  all  his  creditors,  and   wrote  after  his  name  the  words, 
•"  provided  this  does  not  release  the  indorsers  in  any  manner."     In  an 
Action  against  P.   by  another  creditor,  who  had  signed  the«deed,  L.'s 
name  did  not  appear  among  the  signers  of  the  deed  ;  but  it  was  agreed 
that  if  the  signing  by  R.  did  not  release  the  indorser,  then  all  the 
•creditors  had  signed.     Held — The  condition  annexed  by  R.  to  his  sig- 
nature of  the  deed  of  composition  was  equivalent  to  a  reservation  of 
his  rights  against  Lochman  as  indorser  of  the  note  held  by  R.,  and  did 
not  prevent  his  execution  of  the  deed  from  operating  as  a  release  of  all 
his  rights  against   P.,  the  maker  of  that  note,  although  it  could  not 
affect  any   right   of  L.  against    P.     Sohier  v.  Loring,  6   Gush.    537  ; 

Tobey  v.  Ellis,  114  Mass.  120.     But  the  report  expressly  states  that 
if  this  execution  of  the  deed  by  R.  did  not  release  the  indorser,  all  the 


OF  STANDARD   DECISIONS.  173 

creditors  of  P.  had  signed  the  composition  deed — which,  as  L.'s  name 
does  not  appear  among  the  signers  of  that  deed. 

1217.  The  taking,  by  a  creditor,  of  the  debtor's  note  for  an  existing 
indebtedness  does  not  merge  or  extinguish  the  indebtedness  ;  the  note 
is  simply  evidence  of  the  debt,  and  its  operation  is  only  to  extend  the 
time  of  payment.     Jagger  Iron  Co.  v.  Walker,  76  N.  Y.  521. 

1218.  When  default  is  made  in  payment,  the  creditor  may  sue  upon 
the  original  demand  and  bring  the  note  into  court  to  be  delivered  up- 
on trial.     Jagger  Iron  Co.  v.  Walker,  76  N.  Y.  521. 

1219.  And   so,   successive   renewal    notes    are  simply  extensions- 
from  date  to  date  of  the  time  of  payment.     Jagger  Iron  Co.  v.  Walker, 
76  N.  Y.  521. 

1220.  This  rule  is  not  changed  by  the  facts  that  the  first  of  a  series 
of  notes  so  given  was  indorsed  and  procured  to  be  discounted  by  the 
creditor,  and  the  succeeding  ones  were  each  discounted  to  raise  money 
to  take  up  the  preceding  one.     No  note  in  the  series  is  a  payment  of 
the  preceding  one,  unless  there  has  been  a  discharge  of  the  creditor  as 
indorser,  or  unless  by  the  transaction  he  has  obtained  a  claim  against 
another  party.     Jagger  Iron  Co.  v.  Walker,  76  N.  Y.  521. 

1221.  Plaintiff,  who  was  a  brother-in-law  of  N.,  of  the  firm  of  N. 
&  Co.,  to  induce  the  defendants,  who  were  creditors  of  that  firm,  to- 
unite  with  the  other  creditors  in  a  composition  of  its  debts,  secretly 
agreed  to  and  did  give  them  his  promissory  note  for  a  portion  of  their 
debt  beyond  the  amount  to  be  paid  by  the   composition  agreement. 
Defendants  transferred  the  note   before  due  to  a  bona  fide  holder,  and 
plaintiff  was  compelled  to  pay.     Held,  that  the  agreement  was  a  fraud 
upon  the  other  creditors;  that  it   was  not  divested  of  its  fraudulent 
character  by  the  fact  that  it  was  made,  not  by  the  debtor,  but  by  a^ 
third  person  ;  and  that  an  action  was  not  maintainable  to  recover  back 
the  amount  so  paid.     Solinger  v.  Earle,  82  N.  Y.  393. 

1222.  Where  the  drawer  of  a  check   has  no  funds  at  the  time  in 
the  bank  to  meet  it,  the  check  is  due  immediately  without  present- 
ment and  demand,  and  the  statute  of  limitations  begins  to  run  from 
its  date.     Brush  v.  Barrett,  82  N.  Y.  400. 

1223.  Where,  therefore,  the  holder  of   the  check   delays   for  six 
years  to  enforce  his  claim  it  is  barred  by  the  statute.     Brush  v.  Barrett r 
82  N.  Y.  400. 


CONFEDERATE  CURRENCY. 

1224.  A  co-surety,  who  discharged  a  judgment  by.  paying  it  in 
Confederate  money,  can  maintain  an  action  for  contribution  against 
the  other  surety.     The  value  of  the  Confederate  money,  at  the  pay- 
ment, with  interest,  was  the  amount  which  such  payment  would  entitle 
plaintiff  to  recover;    not  the  amount  of   the  judgment   discharged. 
Edmonds  v.  Sheahan,  47  Texas,  443. 

1225.  The  fact  that  a  payment  of  a  note  was  in  Confederate  States 
Treasury  notes,  did  not  prevent  it  from  being  a  valid  payment  when 
made.     Long  v.  Walker,  47  Texas,  173. 

1226.  A  sale  of  property,  for  cash,  was  made  in  Monroe  County  r 


174  MONBOE'S  DIGEST 

with  reference  to  Confederate  States  Treasury  notes  as  a  standard  of 
value,  on  December  26th,  1862.  The  balance  of  the  purchase  money 
actually  paid  must  be  reduced  to  its  true  gold  value  as  to  that  date  ; 
but  in  ascertaining  this  value,  the  price  at  which  gold  was  then  selling 
in  Confederate  currency  in  Richmond  or  elsewhere  in  the  Confederate 
States  is  not  to  be  regarded  as  fixing  the  relative  value  of  gold  and 
Confederate  notes.  The  value  of  Confederate  notes  then,  as  compared 
with  gold,  should  be  ascertained  by  the  then  average  apparent  appre- 
ciation in  value,  when  sold  for  Confederate  currency,  of  all  kinds  of 
property,  real  and  personal,  in  Monroe  County,  as  compared  with  the 
value  of  such  property  just  before  the  war  commenced,  when  gold  was 
the  currency  of  the  country.  Bierne  \.  Brown's  Adm'r,  10  West 
Tirgtnia,  748. 

1227.  A  decree,  or  a  judgment,  when  rendered  upon  a  contract 
payable  in  Confederate  Treasury  notes,  should  be  for  a  sum  equal  to 
the  value  of  those  notes,  not  in  the  gold  coin,  but  in  the  legal-tender 
currency  of  the  United  States,  at  the  time  and  the  place  where  they 
•were  payable.  Such  notes  can  in  no  proper  sense  be  regarded  as 
commodities  merely.  Bissell  v.  Heyward,  96  U.  S.  580. 


CONFLICT  OF  LAWS. 

1228.  The  lex  loci  governs  in  determining  the  validity,  and  in  the 
construction  of  contracts,  but  in  respect  to  the  time,  mode  and  extent 
of  the  remedy  the  lex  fori  governs.     Statutes  of  limitation  fixing  the 
time  within* which  an  action  may  be  brought,  laws  providing  for  a  set- 
off,  and  statutes  exempting  property  from  levy  and  sale  for  debt,  or 
exempting  wages  from  garnishment,  relate  to  the  remedy  only,  and 
such  laws  of  a  State  where  a  debt  is  contracted  cannot  be  invoked 
where   the   remedy  is   sought   to   be    enforced    in  a   different    State. 
Mineral  Point  R.  R.  Co.  v.  Barron,  83  111.  365. 

1229.  The  law  of  this  State  prohibiting  an  individual  from  doing 
•business  under  a  firm  name,  does  not  affect  a  person  residing  in  an- 
other State.     Succession  of  'Bofenschen,  29  La.  711. 

1230.  The  decisions  of  the  court  of  one  State  upon  a  question  of 
commercial  law  are  not  obligatory  upon  the  courts  of  other  States ; 
and  when  such  decisions  are  in  conflict  with  the  principles  of  the  com- 
mon law  concurred  in  by  the  courts  of  this  State,  they,  will  not  control 
«ven  as  to  contracts  made  here  but  to  be  performed  in  the  State  where 
such  decisions  were  made.     Faulkner  v.  Hart,  82  N.  Y.  413. 

1231.  It  seems,  however,  that  when  the  question  arises  under  a 
State  statute  the  construction  placed  upon  the  statute  by  the  courts  of 
the  State,  will  control.     Faulkner  v.  Hart,  82  N.  Y.  413. 

1232.  An  assignment  by  virtue  of  or  under  a  foreign  law  does  not 
operate  upon  a  debt,  or  rights  of  action  as  against  a  person  in  this  State. 
Hibernia  Nat.  Bank  v.  Lacombe,  84  N.  Y.  367. 

1233.  Plaintiff,  a  corporation  organized  under  the  laws  of  Mich- 
igan, and  doing  business  in  that  State,  being  the  owners  of  a  note  made 
by  I.  and  D.,  which,  with  other  debts,  was  secured  by  a  mortgage  upon 
a  propeller,  before  the  maturity  of  the  note,  transferred   it  and  the 


OP  STANDARD  DECISIONS.  175 

mortgage  to  a  Detroit  bank.  After  the  maturity  of  the  note  I.  went 
to  Detroit  and  applied  to  the  bank  for  an  extension  of  time,  and  it  was 
agreed  between  him  and  the  bank  that  provided  the  latter  could  get 
the  consent  of  the  indorsers  of  said  note  it  "  would  extend  the  time  of 
payment  so  that  the  amount  could  be  paid  in  installments  not  exceed- 
ing for  any  part  a  period  of  three  months."  I.  to  give  new  notes  for 
the  amount,  indorsed  to  the  satisfaction  of  the  bank,  to  be  held  as 
further  and  additional  security,  and  to  pay  interest  at  the  rate  of  ten 
per  cent,  per  annum.  The  bank  procured  the  assent  of  the  indorsers 
and  sent  one  M.  with  the  note  and  mortgage  to  Buffalo  with  directions 
to  foreclose  the  mortgage  unless  the  note  was  paid  or  said  arrangement 
was  carried  out.  I.  thereupon  procured  and  delivered  to  M.  new  notes 
made  by  him  in  pursuance  of  the  agreement  for  the  amount  of  the 
note  and  interest.  Two  of  said  new  notes  were  dated  at  Buffalo, 
August  7th,  1875,  payable  with  seven  per  cent,  interest  to  the  order  of 
defendant,  and  by  him  indorsed  for  the  accommodation  of  I.,  the  latter 
also  paid  to  M.  a  sum  equal  to  the  difference  in  interest  between  that 
called  for  by  the  notes  and  that  agreed  to  be  paid,  from  the  time  of 
maturity  of  the  old  note  until  the  new  notes  by  their  terms  became 
due.  M.  delivered  the  new  notes  and  the  money  to  the  bank  at 
Detroit,  which  accepted  the  same  and  thereupon  extended  the  time  of 
payment  as  agreed.  In  an  action  upon  the  notes  one  of  the  defences 
was  usury.  Held,  that  the  contract  for  forbearance  was  a  Michigan 
one,  and  as  it  was  valid  under  the  laws  of  that  State  was  valid 
and  enforceable  here.  West  Tr.  &  Coal  Co.  v.  Eliderhouse,  87  N. 
Y.  430. 


CONSIDERATION. 

1234.  The  waiver  of  a  legal  or  equitable  right  is  a  sufficient  con- 
sideration to  support  a  promise.     Where  there  is  any  consideration, 
the  law  will  not  inquire  into  its  adequacy.     Buckner  v.  Mcllroy,  31 
Ark.  631. 

1235.  Debt   barred   by  statute   sufficient  consideration   for  new 
promise.     Gammell  v.  Parramore,  58  Ga.  54. 

1236.  An  agreement  to  forbear   proceedings  is  a  valid  consider- 
ation for  a  promise,  though  the  claim  be  doubtful.     Matthews  V.  Morris, 
31  Ark.  222. 

1237.  Where  a  promissory  note  is   given  for  a  draft  assigned  by 
the  payee  of  the  note  to  the  maker,  and  an  agreement  executed  at  the 
same  time,  that,  in  the  event  the  maker  of  the  note  could  not  "  collect 
or  realize  "  on  the  draft,  he  was  to  be  released  from  the  payment  of  the 
note,  no  recovei'y  can  be  had  on  the  note  where  the  maker  has  been 
unable   to   realize   anything   on   the   draft.     And   the   fact   that   the 
assignee  of  such  draft  becomes  indebted  to  the  drawer,  does  not  change 
the  rule  or  show  that  the  holder  has  realized  anything  on  it,  when  no 
suit  has  been  brought  by  the  drawer  on  his  demand  to  enable  the 
holder  to  set  off  the  draft  against  the  same.     Hall,  et  al.  v.  Henderson, 
84  111.  611. 

1238.  Although  the  consideration  for  a  promise  or  undertaking 


176  MONROE'S  DIGEST 

may  be  expressed  in  a  separate  writing  of  the  parties,  still,  parol 
evidence  may  be  received  to  show  that  the  real  consideration  was 
different,  where  the  defence  goes  to  the  consideration.  Where  an  action 
is  brought  upon  a  written  contract,  resort  may  be  had  to  parol  evi- 
dence for  the  purpose  of  impeaching  the  consideration  of  the  agree- 
ment. Wolfv.  Fletemeyer,  83  111.  418. 

1239.  The  giving  of  his  individual  promissory  note,  by  one  of  the 
members  of  a  copartnership,  after  its  dissolution,  for  a  portion  of  a  co- 
partnership debt,  is  a  good  consideration  for  an  agreement  on  the  part 
of  the  creditor  to  release  and  discharge  the  maker  from  liability  for  the 
debt.  Ludington  v.  Bell,  77  N.  Y.  138. 


CONSTITUTIONAL  LAW. 

1240.  The  Legislature  in  chartering  a  corporation  has  the  power 
to  provide  that  it  may  lose  its  corporate  existence,  without  the  inter- 
vention of  the  courts,  by  any  omission  of  duty  or  violation  of  its 
charter,  or  default  as  to  limitations  imposed.  E'klyn  St.  Trans.  Co.  v. 
City  of  B'klyn,  78  N.  Y.  524. 


CONSTRUCTION  OF  STATUTES. 

1241.  The  practical  construction  put  upon  a  statute  by  public 
officers  whose  duty  it  is  to  obey  it  is  not  controlling  upon  the  courts. 
In  re  Manhat.  Svgs.  InsCn,  82  N.  Y.  142. 


CONTRACT. 

1242.  Contract  of  sale  induced  in  part  by  a  desire  on  behalf  of 
both  vendor  and   purchaser  to  cause  certain  promissory  notes  of  the 
vendor's  to  be  paid,  on  which  he  has  forged  the  names  of  persons  as  in- 
dorsers,  and  thereby  to  prevent  a  prosecution  for  the  forgery,  is  illegal 
and  void,  and  leaves  the  property  subject  to  attachment  by  the  vendor's 
creditors.     Laing  v.  Me  Call,  50  Vt.  657. 

1243.  A.,  who  had  bought  ice  of  B.,  ceased  to  take  it  on  account 
of  dissatisfaction  with  B.,  and  contracted  for  ice  with  C.     Subsequently,. 
B.  bought  C.'s  business  and  delivered  ice  to  A.,  without  notifying  him 
of  his  purchase  until  after  the  delivery  and  consumption  of  the  ice. 
Held,  that  B.  could  not  maintain  an  action  for  the  price  of  the  ice 
against  A.     Boston  Ice  Co.  v.  Potter,  123  Mass.  28. 

1244.  A  contract  simply  giving  a  right  to  take  ore  from  a  miner 
no  interest  or  estate  being  granted,  merely  confers  a  license.     Silsbyv. 
Trotter,  29  N.  J.  228. 

1245.  Courts  cannot  protect  the  rash  against  the  consequences  of 
imprudent    contracts,  if  they  enter  into  them  voluntarily,  and  not 


OF   STANDARD  DECISIONS.  177 

through  fraud  or  artifice.  A  deed  made  by  a  person  while  in  a  state 
of  intoxication  will  be  set  aside  if  advantage  has  been  taken  of  his 
situation,  or  his  drunkenness  was  produced  by  the  act  or  connivance 
of  the  person  to  be  benefited  by  the  deed.  O"1  Conner  v.  Rempt,  29  N. 
J.  156. 

1246.  B.  executed  his  promissory  note  to  H.  &  D.,  payable  Jan- 
uary 15th,  1876,  in  the  usual  form,  with  the  addition  of  the  following 
words  :     The  above  note  is  given  upon,  and  for  the  sole  consideration 
that  the  said  Hawley  &  Dodd  have  agreed  and  promised  that  upon  the 
payment  of  the  said  note  at  maturity  (time  being  of  the  essence  of  the 
contract),  they  will  sell  and  transfer  to  the  undersigned,  Bingham,  the 
planing  machine  which  they  have  this  day  entrusted  to  him.     Held, 
that  the  promise  of  B.  was  not  dependent  upon  the  promise  of  H.  &  D. 
to  sell  and  transfer  the  machine  as  a  condition  precedent ;  but  that  it 
was  an  independent  promise  to  pay.      Hawley  v.  Bingham,  6   Ore- 
gon, 76. 

1247.  It  seems  that  the  rule  in  this  State,  that  a  common  carrier 
may,  by  express  stipulation,  exempt  himself  from  liability  for  negli- 
gence, will  not  be  considered  as  overthrown  or  affected  by  the  decision 
of  the  United  States  Supreme  Court  to  the  contrary.     (Lockwood  v. 
R.  R.    Co.,  17  Wai.  357.)     Maynard  v.  S.  B.   &  N.  Y.  R.  R.,  71  N. 

y.  iso. 

1248.  If  a  written  agreement  which  is  intended  to  be  signed  by 
several  persons  or  parties  thereto  is  not  signed  by  all,  it  is  not  com- 
pletely executed  and  does  not  bind  any  of  the  parties.     Barber  v.  Bur- 
rows, 51  Gal.  404. 

1249.  An  agreement  will  not  be  adjudged  illegal  when  it  is  capable 
of  a  construction  which  will  uphold  and  make  it  valid.     Lorrillard  v. 
Clyde,  86  N.  Y.  384. 

1250.  When  a  contract  is  open  to  two  constructions,  the  one  law- 
ful and   the  other  unlawful,  the  former  must  be  adopted.     Hobbs  v. 
McLean,  117  U.  S.  567. 

1251.  One  of  the  parties  to  a  contract  cannot  rescind  unless  he 
restores  or  offers  to  restore  the  other  party  to  his  original  position,  he 
cannot  retain  in  himself  or  withhold   through  another  any  fruits  of 
the  contract.     Francis  v.  N.  Y.  &  B.  EL  R.  R.  Co.,  108  N.  Y.  93. 

1252.  Where  there  is  uncertainty  or  doubt  as  to  the  meaning  of 
words  or  phrases  used  in  a  contract,  in  seeking  for  the  intent  of  the 
parties  as  evidenced  by  the  words  used,  the  fact  that  a  construction 
contended  for  would  make  the  contract  unreasonable  and  place  one  of 
the  parties  entirely  at  the  mercy  of  the  other,  may  properly  be  taken 
into  consideration.     Russell  v.  Allerton,  108  N.  Y.  288. 

1253.  Where  a  party  by  fraudulently  concealing  his  insolvency  and 
his  intent   not  to  pay  for  goods,  induces  the  owner  to  sell  them  to  him 
on  credit,  the  vendor,  if  no  innocent  third  party  has  acquired  an  inter- 
est in  them,  is  entitled  to  disaffirm  the  contract  and  recover  the  goods. 
Donaldson,  Assignee  v.  Farwell,  et  al.,  (3  Otto)  U.  S.  Rpts.  93,  631. 

1254.  The  defeasible  title  of  the  vendee  to  the  goods  so  acquired 
vests  in  his  assignee  in  bankruptcy,  and  is  subject  to  be  determined  by 
the  prompt  disaffirmance  of  the  contract  by  the  vendor.     Ibid. 

1255.  What  one  party  to  a  contract  understands  or  believes  is  not 
to  govern  its  construction  unless  such  understanding  or  belief  was  in- 

12 


178  MONROE'S    DIGEST 

duced  by  the  conduct  or  declarations  of  the  other  party.  Bank  v. 
Kennedy,  17  Wallace,  U.  S.  19;  also  Bailey  v.  Railroad  Company,  17 
Wallace,  U.  S.  97. 

1256.  The  provisions  of  the  constitution  and  by-laws  of  the  New 
York  Exchange  are  obligatory  upon  its  members  as  a  contract.      Wes- 
ton  v.  Ives,  97  N.  Y.  222.     It  seems  clear  that  a  lunatic  is  liable  upon 
executed  contract  for  articles  suitable  to  his  degree,  furnished  by  a 
person  who  did  not  know  of  his  lunacy,  and  practiced  no  imposition 
upon  him.      Williams  v.  Wentworth,  5  Beav.  Eng.  325 ;  also,  Selby  v. 
Jackson,  6  Beav.  Eng.  192. 

1257.  Where  A.  advanced  money  on  mortgage  to  B.,a  lunatic,  but 
did  not  know  B.'s  state,  and  took  no  advantage  of  him,  he  was  held  to 
a  decree  of  foreclosure.     Campbell  v.  Hooper,  24  L.  J.  (Ch.)  Eng.  644. 

1258.  It  seems  equally  clear  that  he  is  not  liable  when  the  other 
contracting  party  has  taken  advantage  of  his  lunacy  ;  indeed,  that  was 
the  decision  in  Levey  v.  Baker  reported  on  Brown  v.  Jodrell,  M.  &  M. 
Eng.  106. 

1259.  A  positive  promise  which  is  not  contrary  to  law  or  to  public 
policy,  or  obtained  by  fraud,  imposition,  undue  influence,  or  mistake,  is 
an  obligation  in  morals,  and  is  a  sufficient  consideration  for  a  subse- 
quent express  promise.     Bentley,  et  al.,  executors  v.  Lamb,  112  Penn. 
480. 

1260.  A  verbal  promise  by  an  executor,  either  with  or  without  as- 
sets, to  a  legatee  to  pay  a  legacy,  since  the  Act  of  April  26th,  1855.     P. 
L.  308,  imposes  no  personal  liability  upon  him,  and  no  right  of  action 
against    him    can   therefore   be   maintained.      Smith  v.   Carroll,    112 
Penn.  390. 

1261.  Contracts,  when  binding  : — either  party  may  withdraw  and 
refuse  to  complete  a  contract  any  time  before  an  agreement  is  actually 
entered  into.     Eliason  v.  Henshaw,  4  Wheat.  228. 

1262.  A  party  making  an  offer  may  withdraw  it  any  time  before 
the  other  party  has  accepted  it.     Payne  v.  Cave,  3  T.  R.  148 ;  Eutledge 
v.  Grant,  4  Bing.  653. 

1263.  But  where  the  other  party  accepts  before  he  is  notified  of 
the  withdrawal  of  the  contract,  it  is  binding.     Cook  v.  Oxley,  3  T.  R. 
268,  653  ;  in  Maryland,  Wheat  v.  Cross,  31  Md.  99;  Stockhamv.  Stock- 
ham,  32  Md.  196  ;  in  Alabama,  Falls  v.  Gaither,  9  Post.  (Ala.)  605 ;  in 
^New  Hampshire,  Abbott  v.  Shepard,  48  N.  H.  14. 

1264.  The  unsupported  oath  of  one  of  the  parties  to  an  instru- 
ment is  not  sufficient  to  defeat  or  change  it  when  opposed  by  the  oath 
of  the  other  party.     Jones  v.  Backus,  et  al.,  114  Penn.  120. 

1265.  Parol   evidence    is    admissible   to  show  a  verbal,   contem- 
poraneous agreement  which  induced  the  execution  of  a  written  obli- 
gation, though  it  may  vary  or  change  the  terms  of  the  written  con- 
tract.    Cullmans,et  al.  v.  Lindsay,  et  al.,  114  Penn.  166. 

1266.  A  written  agreement  may  be  modified,  explained,  reformed, 
or  altogether  set  aside  by  parol  evidence  of  an  oral  promise  or  under- 
taking material  to  the  subject-matter  of  the  contract,  made  by  one  of 
the   parties  at  the  time  of  the  execution  of  the  writing,  and  which  in- 
duced the  other  party  to  put  his  name  to  it.     Ibid.      See  Juniata 
Building  Ass.  v.  Hetzel,  7  Ont.  507  ;  also,  Walker  v.  France,  (2  Amer- 
man )  U  2  Penn.  203. 


OF   STANDARD   DECISIONS.  179 

1267.  Where    upon    agreement    between    them,  A.  and  B.  have 
placed  in  the  hands  of  C.  each  a  certain  sum,  and  C.  was  to  contribute 
&  like  sum,  the  fund  created  to  be  wholly  for  the  benefit  of  D.,  then  in 
ignorance  of  the  arrangement,  and   the  control  of  it  entirely  relin- 
quished by  the  contributors,  D.  may  sustain  an  action  in  his  own  name 
against  C.  to  enforce  payment  of  the  fund  to  him.     Hostetter  v.  Hoi- 
linger,  117  Penn.  606. 

1268.  To  reform  a  written  contract  on  the  ground  of  fraud,  evi- 
dence that  it  was  fraudulently  misread  to  the  defendant  when  he  signed 
it,  by  a  third  person  to  whom  it  was  entrusted  merely  for  the  purpose 
of  delivery,  is  insufficient.     Sylvius  v.  Kosek,  117  Penn.  67. 

1269.  Every  contract  must  be  mutual  as  to  remedy  and  obligation, 
And  will  not  be  enforced  against  one  who  has  not  the  power  to  enforce 
it  in  his  own  behalf.      Ryan  v.  Dunphy,  4  Mont.  342. 

1270.  An  agreement  by  one  of  three  parties  to  the  other  two,  all 
three  of  whom  were  equally  obligated  to  a  fourth  party,  to  procure  the 
payment  of  their  common  indebtedness  from  other  resources  of  an  in- 
solvent company ;  for  which  they  were  personal  security,  is  without 
any  valid   consideration  and  void.      Kinna  &  Ming  v.  Wool/oik,    4 
Mont.  318. 

1271.  If  no  time  is  fixed  for  payment  of  money  acknowledged  to 
be  owing,  it  is  due  at  once,  or  at  any  time  the  payee  choose  to  demand 
it.    Sweetland  v.  Barrett,  4  Mont.  217.. 

1272.  Meaning  of  the  words,  "  Value  received" — In  a  guaranty 
written  on  the  back  of  a  promissory  note  the  words  value  received  im- 
part a  consideration  which  is  prima  facie  sufficient  to  support  the  con- 
tract.    Semble,  that  a  guaranty  is  an  original  undertaking  upon  which 
the  guarantor  is  liable  in  the  absence  of  proof  that  the  maker  of  the 
note  is  insolvent  or  that  diligence  was  used  to  collect  from  him.     Mar- 
tin v.  The  Hazard  Powder  Co.,  2  Colorado,  596. 

1273.  When  one  party  to  a  contract  violates  it,  he  cannot  avail 
himself  of  its  provisions  against  the  other  party,  and  such  other  party 
lias     a     right     to    consider    the    contract    rescinded.      Scheland    v. 
Erpelding,  6  Oregon,  258. 

1274.  Where  E.  delivered  a  note  of  H.  to  his  son,  with  instruc- 
tions to  go  to  H.  and  buy  a  mule,  and  enter  the  price  of  the  mule  on 
the  note  as  a  credit,  and  the  son  entered  into  a  bargain  with  R.  to  buy  a 
horse  for  $125,  with  the  understanding  that  if  R.  did  not  collect  the 
amount  out  of  the  note  by  a  certain  time,  he  was  to  have  his  choice  to 
take  the  horse  back  or  take  $125  for  him  ;  Held,  that  the  legal  effect  of 
the  transaction  was  to  place   the  note  with  R.  as  a  security  for  the 
price  of  the  horse,  and  the  property  of  the  note  remained  in  E.     Earp 
v.  Richardson,  78  N.  C.  277. 

1275.  Degree  of  proof  to  establish.     A  subsequent  contract  will 
not  operate  to  extinguish  a  former  one  between  the  same  parties  unless 
it  is  expressly  accepted  by  them  for  that  purpose.     The  evidence  must 
be  clear  and  satisfactory  that  such  was  intention  of  the  parties.      Wat- 
son v.  Janion,  6  Oregon,  137. 

1276.  A  purchaser  at  an  execution  sale  cannot  in  equity  be  ex- 
cused from  consummating  his  purchase  because  never  having  attended 
such  a  sale  before,  and  not  hearing  the  terms  of  the  sale,  he  supposed 
himself  to  be  buying  the  entire  estate  in  question,  and  not  the  "  right, 


180  MONROE'S  DIGEST 

title,  and  interest  "  of  the  judgment  debtor  in  it.     Upham  v.  Hamillr 
11  R.  I.  565. 

12T7.  Where  a  commission  merchant  contracts  for  the  purchase  of 
grain  for  another,  to  be  delivered  at  a  future  time,  the  principal  mak- 
ing an  advance  on  the  purchase,  which  is  in  the  merchant's  name,  and 
agrees  to  keep  the  margin  good  up  to  the  time  of  delivery,  the  relation 
of  pledger  and  pledgee  will  not  be  created,  so  as  to  require  a  notice  of 
the  time  and  place  of  a  sale  on  failure  to  keep  up  the  margins.  Cobett 
v.  Underwood,  83  111.  324. 

1278.  Memorandum  of  contract  as  follows  :     "  I  hereby  agree  to- 
sell  J.  K.  the  house  and  lot  situated  on  L.  Street,  second  lot  east  of  C. 
Street,  on  north  side  of  L.  Street,  for  the  sum  of  ($7,000)  seven  thou- 
sand dollars,  and  agree  to  give  a  satisfactory  deed  on  or  before  the  first 
day  of  September  next,  and  hereby  acknowledge  the  receipt  of  ten 
dollars  on  account  of  above  sale."     Signed  W.   E.  T.,  J.  K.     In  an 
action  by  W.   E.   T.  against  J.  K.,  Held,  that  the  memorandum  was- 
sufficient  to  bind  J.  K.      Thornton  v.  Kelly,  11  R.  I.  498. 

1279.  A  contract  for  the  sale  of  wheat  in  store,  to  be  delivered  at 
a  future  time,  which  requires  the  parties  to  put  up  margins  as  secur- 
ity, and  provides  that,  if  either  party  fails,  on  notice,  to  put  up  further 
margins  according  to  the  market  price,  the  other  may  treat  the  con- 
tract as  filled  immediately,  and  recover  the  difference  between  the  con- 
tract and  market  price,  without  offering  to  perform  on  his  part,  or 
showing  an  ability  to  perform,  is  illegal  and  void,  as  having  a  perni- 
cious tendency.     Lyon  &  Co.  v.  Culbertson,  Blair  &  Co.,  83  111.  33. 

1280.  All  contracts  for  sale  made  on  'Change  by  members  of  the 
Board  of  Trade  to  another  member,  with  reference  to  the  by-laws  and 
rules  of  the  board,  must  be  construed  as  if  those  rules  were  expressly 
made  a  part  of  the  contract ;  but  members  of  that  board  may,  by  con- 
tract on  'Change  or  elsewhere,  bind  themselves  beyond  and  independ- 
ent of  these  rules.     Where  the  sale  is  made  at  its  rooms,  in  the  ab- 
sence of  proof  to  the  contrary,  it  will  be  presumed  to  have  been  made 
with  reference  to  these  rules.      Thorne,  et  al.  v.  Prentiss,  83  111.  99. 

1281.  S.  residing   in   Indiana,    received   from  W.,  a   commission 
merchant  of  Cincinnati,  $6,000,  advanced  on  account  of  pork,  to  be 
thereafter  cut  and  shipped   by  S.,  for  sale  on  commission.     In  pur- 
suance of  the  contract,  S.  shipped  by  rail  a  car-load  of  the  pork,  con- 
signed to  W.,  at  Cincinnati,  to  whom  he  also  sent  an  invoice  of  the 
shipment,  with  a  letter  of  advice,  stating  :     "  We  deliver  this  load  on 
our   indebtedness."     The  value   of  the   shipment  was   less  than  the 
amount  of  such   indebtedness.      The   bill  of  lading  was  taken  by  S. 
in  his  own  name,  and  was  not  forwarded  to  the  consignee.     Heldr 
under  these  circumstances  the  delivery  of  the  pork  by  S.  to  the  car- 
rier was  equivalent  to  a  delivery  to  the  consignee,  and  that  after  such 
delivery  S.  retained  no  such  interest  in  the  pork  as  could  subject  to- 
attachment  at  the  suit  of  a  creditor.     Strauss  v.  Wessel,  30  Ohio,  211. 

1282.  In  case  of  a  mistake  in  the  drafting  of  a  contract,  if  the 
parties  subsequently  settle  upon  a  basis  of  the  contract  as  it  should 
have  been  written,  and  a  promise  is  made  to  pajr  or  allow  the  balance 
thus  found  due,  such  promise  will  be  enforced.     A  written  agreement 
may  be  waived,  varied  or  annulled,  by  a  subsequent  oral  agreement  of 
the  parties. 


OF   STANDAKD   DECISIONS.  181 

1283.  In  Ooss  v.  Lord  Nugent,  5  Barn,  and  Ad.  65,  Eng.,  Lord 
Denman  states  the  law  on  this  subject  thus  :     "  After  the  agreement 
lias  been  reduced  into  writing,  it  is  competent  to  the  parties,  at  any 
time  before  breach  of  it,  by  a  new  contract  not  in  writing,  either  alto- 
gether to  waive,  dissolve,  or  annul  the  former  agreement,  or  in  any 
measure  to  add  to,  or  subtract  from,  or  vary  or  qualify  the  terms  of  it, 
and  thus  to  make  a  new  contract,  which  is  to  be  proved  partly  by  the 
written  agreement,  and  partly  by  the  subsequent   verbal  terms  en- 
grafted upon  what  will  thus  be  left  of  the  written  agreement."     Ap- 
proved in  Wiggin  v.  Godwin,  63  Me.  389. 

1284.  The  agreement  by  which  a  creditor,  who  has  bought  his 
debtor's  property,  stipulates  to  reconvey  it  to  the  debtor  on  condition 
that  the  latter  pays  a  certain  price  within  a  certain  time,  is  a  valid 
•contract,  and  if  the  debtor  fails  to  pay  the  price,  in  accordance  with 
the  terms  of  said  contract,  his  right  of  redemption  will  be  forfeited, 
and  the  title  of  the  property  will  vest  absolutely  in  the  purchaser. 
Soulie  v.  Hanson,  29  La.  161. 

1285.  Contracts  made  on  Sunday  in  this  State  are  void,  not  at 
common  law,  but  because  they  are  in  violation  of  a  penal  statute  of 
this  State.     So  an  action  by  the  payee,  against  the  maker  on  a  prom- 
issory note,  and  answer,  alleging  the  signing  and  delivery  of  the  same 
on  Sunday  to  a  third  person  or  to  a  co-maker,  and  averring  it  to  be 
therefore  void,  is  sufficient.     Such  signing  and  delivery  on   Sunda}1" 
•carry  with  it  no  implied  authority  to  the  person  to  whom  it  is  en- 
trusted, to  deliver  the  same  to  the  payee.     Such  signing  and  delivery 
on  Sunday  render  the  instrument  void,  though  then  entrusted  to  an- 
•other  with  instructions   to  deliver  it  to  the  payee  on  a  business  day. 
Davis  v.  Barger,  57  Ind.  54. 

1286.  Twelve  persons  entered  into  the  following  obligation  under 
seal :     Whereas,  P.  S.  is  employed  by  the  Baltimore  County  Brewing, 
Malting  and  Distilling  Company,  as  the  manager  of  said  company  ; 
And  whereas,  the  said  P.  S.  is  employed  and  authorized  to  purchase 
the   malt  and  hops  for  said  brewery  ;  and  whereas,  each  of  the  direct- 
•ors  of  said  company  have  agreed  to  become  individual^  responsible  in 
the  sum  of  twenty-five  hundred  dollars  each  for  malt  and  hops  which 
the  said  manager  shall  purchase  for  the  use  of  the  said  brewery,  dur- 
ing the  space  of  one  year  from  the  date  hereof.     Now,  therefore,  these 
presents  witness,  that  in  consideration  that  said  P.  S.  will  undertake 
said  authority  and  employment,  and  that  dealers  in  hops  and  malt  will 
sell  to  him  upon  the  faith  of  this  bond,  we  bind  ourselves  and  each 
of  us,  our  and  each  Of  our  heirp,  executors  and  administrators,  in  the 
sum  of  twenty-five  hundred  dollars  each,  making  in  all  the  sum  of 
thirty  thousand  dollars,  for  the  payment  of  hops  and  malt,  which  the 
said  P.  S.  may  purchase  for  the  use  of  said  brewery,  during  the  space 
of  one  year  from  the  date  thereof ;  and  we,  and  each  of  us  agree  and 
promise,  that  we  will  pa}7  such  hops  and  malt  bills,  in  total  not  exceed- 
ing the  sum  of  thirty  thousand  dollars,  or  twenty-five  hundred  dollars 
^ach,  in  the  manner  and  at  the  time  the  said  P.  S.  shall  agree  to  pay 
them.     In  an  action  against  all  of  said  obligors,  it  was  Held,  First, 
That  in  the  construction  of  said  paper,  as  in  the  construction  of  all 
written  instruments,  the  cardinal  rule  to  be  observed,  was  to  ascertain 
the  intention  of  the   parties  as  expressed  on  the  face  of  the  paper. 


182  MONROE'S  DIGEST 

Second,  That  the  said  instrument  construed  all  together  and  in  all 
its  parts,  was  a  contract  by  which  each  of  the  obligors  had  bound  him- 
self severally  for  $2,500  only.  Boyd,  et  al.  v.  Kienzle,  et  al.,  46  Md.  294, 

1287.  Equity  can  no  more  enforce  a  void  contract  than  can  a  court 
at  law.     Reed  v.  Reeves,  Adm'r,  13  Bush,  Ky.  447. 

1288.  To  establish  a  contract  by  acceptance  of  a  proposition,  it- 
must  appear  that  the  one  making  it  was  notified  of  the  acceptance, 
loss's  Appeal,  73  Penn.  39. 

1289.  Contract  between   creditor  and    principal,  or  creditor  and 
surety,  without  the  concurrence  of  co-sureties,  whereby  the  latter  are 
subjected  to  an  increased  risk,  operates  as  a  discharge  of  such  sureties. 
The  release  of  one  or  more  sureties  without  the  assent  of  the  co-sure- 
ties will  operate  at  law  to  discharge  the  latter.     In  equity,  however,, 
the  rule  is  different,  and  the-release  of  one  or  more  sureties  will  not  be 
construed  to  have  this  effect,  unless  it  subjects  the  co-sureties  to  an  in- 
creased risk  or  liability.      Smith,  et  al.  v.  State,  use  of  County  Corn- 
miss' rs  of  Baltimore  Co.,  46  Md.  617. 

1290.  Although  the  parties  may  be  longer  than  a  year  in  the  per- 
formance of  a  contract,  still,  if  that  performance  may  be  completed 
within  a  year,  and  such  performance  is  entirely  in  accordance  with  the 
intention  and  understanding  of  the  parties,  such  contract  is  not  within, 
the  statute,  and  need  not  be  in  writing,  in  order  to  maintain  an  action 
upon  it.     Although  a  cause  of  action  may  relate  to  the  subject-matter 
of  a  patent  right,  it  is  within  the  jurisdiction  of  State  Courts,  if  it 
does  not  involve  the  validity  of  the  patent  right.     Blakeney  v.  Gooder 
30  Ohio,  350. 

1291.  On  a  treaty  of  marriage,  a  promissory  note  was  given  in  con- 
sideration of  the  marriage,  which  was  afterwards  solemnized,  and  an 
action  was  subsequently  brought  by  the  indorsee  against  the  two  joint 
and  several  makers  of  the  note, — Held  (reversing  the  decision  of  the 
Common  Pleas),  that  as  the  marriage,  the  consideration  for  the  note,, 
could  not  be  undone,  it  was  not  competent  to  the  defendants  to  avoid 
the  note  upon  the  ground  of  fraud  practiced  during  the  marriage  treaty. 

1292.  That  when  a  party  exercises  his  option  to  rescind  for  fraud T 
he  must  be  in  a  state  to  rescind — that  is,  he  must  be  in  such  a  situa- 
tion as  to  be  able  to  put  the  parties  into  their  original  state  before  the 
contract.     Hogan  v.  Daniel  and  Thos.  Healy,  Irish  Reports,  Common- 
Law  Series,  vol.  11,  p.  119. 

1293.  Where  a  party  to  a  contract,  who  is  entitled  to  a  forfeiture 
in  case  of  non-performance  by  the  other  party  of  a  condition  therein,, 
by  his  own  act  induces  such  other  party  to  omit  strict  performance 
within  the  time  limited,  he  cannot  exact  the  forfeiture,  if  the  party  in 
technical  default  with  reasonable  diligence  thereafter  performs  or  offers- 
to  perform.     Leslie  v.  Knickerbocker  Life  Ins.  Co.,  18  Sickels,  N.  Y. 
27. 

1294.  A  written  contract  having  no  latent  ambiguity  can  neither 
be  qualified  nor  controlled,  enlarged  nor  diminished,  by  evidence  of  a 
contemporaneous   parol   understanding.      Thus  where  defendant   ad- 
dressed plaintiff  by  writing  signed  by  him  and  plaintiffs  agent,  re- 
questing them  to  send  him  a  set  of  patent  milk-pans,  and  saying,  "  I 
agree  to  pay  3rou     ....     if  satisfied  with  the  pans,"  it  was  Held, 
that  evidence  of  an  agreement  between  defendant  and  said  agent  as  to 


OF   STANDARD   DECISIONS.  183 

manner  in  which  the  pans  should  be  tested,  entered  into  at  the  time 
the  written  contract  was  drawn,  and  as  part  of  the  same  agreement, 
was  inadmissible.  If  one  order  goods,  agreeing  to  pay  if  satisfied 
therewith,  he  must,  in  ascertaining  whether  he  is  satisfied  or  not,  act 
honestly,  and  in  accordance  with  the  reasonable  expectations  of  the 
seller  as  implied  from  the  contract,  its  subject-matter  and  surrounding: 
circumstances.  His  dissatisfaction  must  be  real  and  not  pretended,  to» 
be  available  as  a  defence  to  an  action  for  the  contract  price.  Daggett, 
et  al.  v.  Johnson,  49  Rowell,  Vt.  345. 

1295.  An  action  for  a  breach  of  contract  must  be  brought  by  the 
party  with  whom  the  contract  was  made.     Corbett  v.  Schumacher •,  83 
111.  403. 

1296.  Although  an  action  cannot  be  maintained  upon  a  verbal  con- 
tract not  to  be  performed  within  one  year,  yet  when  such  contract  has 
been  fully  performed  by  one  party,  the  other  having  obtained  its  bene- 
fits, he  cannot  refuse  to  pay  the  reasonable  value  thereof.     T.  agreed 
to  work  until  coming  of  age,  a  period  of  six  years  or  more,  for  M. 
Having  performed  the  contract,  T.  may  maintain  an  action  quantum 
meruit  for  his  services.      Towsley  v.  M.,  New  Series,  30  Ohio,  184. 

1297.  The  distinction  between  a  covenant  to  secure  against  liabil- 
ity and  one  to  indemnify  against  damages  by  reason  of  non-perform- 
ance of  some  specified  act,  pointed   out.     Nat.  Bank  v.  Bigler,  83  N. 
Y.  51,  necessarily  implies  that  the  relation  between  him  and  P.  was 
such  that  he  was  not  a  creditor  of  P.,  and  would,  if  called  upon  to  pay 
the  note  as  indorser,  have  any  right  to  recover  against  P.     The  deed 
of  composition  having  been  signed  by  all  the  creditors  of  P.  is  a  bar 
to  this  action  against  him.     Judgment  on  the  verdict  for  the  defendant. 
Richardson  v.  Pierce,  119  Mass.  165. 

1298.  An  agreement  of  creditors  "  to  accept  seventy-five  per  cent, 
of  the  amount  of  indebtedness  as  set  against  our  respective  names  ; 
said  seventy-five  per  cent,  to  be  paid  in  two,  four  and  six  months,  from 
December  15th,"  the  contract  to  take  effect  "  provided  all  merchandise 
indebtedness  accept  the  same  settlement,"  is  an  agreement  on  the  part 
of  a  creditor,  who  has  sold  the  debtor  merchandise  to  compromise  the 
whole  claim  set  against  his  name,  and  rests  upon  sufficient  considera- 
tion.    Farrington  v.  Hodgdon,  119  Mass.  453. 

1299.  Creditors  signed  an  agreement  "  to  accept  seventy-five  per 
cent,   of  the   amount  of  indebtedness   as  set   against   our  respective 
names ;    said   seventy-five  per  cent,  to  be  paid  in  two,  four  and  six 
months,  from  December  15th,"  the  contract  to  take  effect  "  provided  all 
merchandise  indebtedness  accept  the  same  settlement."     A.,  one  of  the 
creditors,  held  three  notes  of  the  debtor,  two  of  which  he  had  pre- 
viously sold,  taken  back  under  false  representations  by  the  purchaser, 
and  at  the  time  he 'signed  the  above  agreement  was,  with  the  knowl- 
edge of  the  debtor,  endeavoring   to   force  the  purchaser  to  take  the 
notes  back,  which  was  done  before  December  15th.     Held,  in  an  action 
by  A.  upon  the  note  not  sold,  that  A.  not  being  in  possession,  or  hav- 
ing control  of  the  two  notes  sold,  the  debtor  was  not  obliged  as  to 
whom  to  tender  the  settlement  notes.     Held  also,  as  to  the  note  in  suit, 
that  the  debtor  was  not  obliged  to  tender  a  settlement  note  of  seventy- 
five  per  cent,  on  that  note  after  the  transfer  of  the  other  two  notes, 
which  the  debtor  had  paid  to  the  purchaser.     Held,  also,  that  evidence 


184  MONROE'S  DIGEST 

of  conversations,  tending  to  show  the  understanding  of  parties  as  to 
the  notes  sold,  prior  to  the  execution  of  the  agreement,  was  not  ad- 
missible to  vary  the  written  contract.  Ibid. 

1300.  The  creditors  of  A.  and  B.  by  a  composition  deed  agreed  to 
accept  from  A.  and  B.  "ten  per  cent,  of  the  amounts  due  us,  and  each 
of  us,  from  said  A.  and  said  A.  and  B.  in  full  settlement  and  discharge 
of  our  debts  against  them  ;  said  ten  per  cent,  to  be  paid  within  thirty 
days."     The  plaintiff,  one  of  A.'s  creditors,  who  joined  in  the  composi- 
tion, held  a  note  and  account  against  him,  which  were  then  due.     H« 
also  held  another  note,  which  would  not  become  due  until  after  the  ex- 
piration of  said  thirty  days,  on  which  A.'s  name  appeared  as  indorser. 
The  defendant  contends  that  upon  payment  often  per  cent,  of  amounts 
due,  he  was  entitled  to  be  discharged  from  all  debts,  whether  due  or 
not.     Held,  whatever  might  have  been  the  effect  of  the  deed   upon 
debts,  the  liability  for  which  was  fixed,  the  character  and  language  of 
the  deed  does  not  indicate  that  it  was  intended  to  be  a  relinquishment 
of  all  liabilities,  by  reason  of  which  the  defendant  might  afterwards, 
upon  the  occurrence  of  certain  events,  become  chargeable  as  a  debtor. 
While  such  a  contingent  demanded,  yet  it  should  appear  that  they  had 
it  in  view  at  the  time  of  executing  the  deed.     Pierce  v.  Parker,  4  Met. 
80,  89.     Here  everything  points  to  the  opposite  conclusion.     Before  it 
could  be  determined  whether  the  defendant  would  become  liable  to  pay 
this   note,  the  composition  deed  would  by  its  terms  have  been  fully 
executed.     There  were  two  claims  to  which  it  strictly  applied ;  and 
the  subsequent  conduct  of  the  parties,  who  made  no  provision  for  any 
dividend  upon  this,  tends  to  show  that  it  was  not  understood  upon 
either  side  that  this  claim  was  released.     Hamblen  v.  Rartigan,  119 
Mass.  153. 

1301.  A  contract  can  only  be  rescinded  by  the  acts  or  assent  of  all 
the  parties.     A  party,  claiming  to  have  rescinded  a  contract,  cannot 
•excuse  himself  for  not  returning  a  promissory  note,  by  showing  that 
it  is  worthless  by  reason  of  its  maker's  insolvency.     Where  a  party 
Jiad  produced  and  surrendered  to  a  referee  at  the  trial  certain  notes, 
but   had   neglected  seasonably  to  return  other  notes,  mrid  the  object 
was  insisted  upon,  it  was  held  that  by  leave  of  court  he  might  re- 
sume the  notes  so  surrendered.     Spencer  v.  St.  Glair,  57  Hall,  N.  H. 
p.  9  ;  Cook  v.  Oilman,  34  N.  H.  556  ;  Evans  v.  Gale,  21  N.  H.  240 ; 

Winkley  v.  Foye,  28  N.  H.  513. 

1302.  I.  sold  stock  to  T.,  and  agreed  that  when  T.  should  desire  it, 
he  would  take  it  back  and  repay  the  price.     Held,  that  upon  tender 
of  the  stock  T.  might  recover  the  price  with  interest.     Laubach  v. 
Laubach,  73  Penn.  389. 

1303.  On   a   refusal  by  a  vendee  to  accept  goods  sold  him,  the 
aneasure  of  damages   is   the  difference  between  the  contract  and  the 
market  price  at  the  time  of  refusal.     Where  the  contract  is  that  the 
vendee  may  rescind  the  contract,  the  vendor  to  pay  back  the  price,  or 
the  contract  is  rescinded  by  the  vendee  by  reason  of  inherent  vice  ;  the 
measure  of  damages  is  the  price  paid  and  interest.     Laubach  v.  Lau- 
bach, 73  Penn.  389. 

1304.  A.  directs  B.  to  give  credit  on  the  application  of  C.  for  such 
goods  as  the  latter  may  order,  and  charge  to  him,  as  it  is  immaterial 
whether   A.  had  any  thing  further  to  do  with  ordering  the  specific 


OF   STANDARD   DECISIONS.  185 

goods,  or  whether  C.  is  the  agent  of  A.  If  B.,  relying  on  the  general 
direction  of  A.  to  deliver  goods  to  C.,  furnishes  goods  to  C.  but  gives 
credit  to  A.,  A.  is  liable  whether  C.  is  A.'s  agent  or  not.  Jackson,  et 
al.  v.  Dodge,  4  Mo.  Ct.  Appeals  (St.  Louis)  567. 

1305.  As  a  general  rule,  an  action  on  a  contract  must  be  brought 
in  the  name  of  the  party  having  the  legal  interest  therein.     A  third 
party  may  maintain    an    action    in    his   own  name  upon  a  contract 
made  expressly  for  his  benefit  where  his  release  would  be  a  sufficient 
discharge  to  the  promissor,  but  not  where  it  would  leave  the  promis- 
sor   liable  to  an  action  by  the  other  contracting  party.     Kountz  v. 
Holthouse,  85  Penn.  St.  235. 

1306.  When  the  plaintiff  in  an  action  on  a  promissory  note  avers, 
in  his  replication,  that  the  note  was  given  to  bind  a  parol  contract  for 
the  conveyance  of  land,  to  be  paid  if  defendant  refused  to  carry  out 
the  bargain,  and  to  be  void  if  the  contract  was  carried  out,  and  that 
defendant  had  refused  to  carry  out  his  part  of  the  contract,  it  is  error 
to  render  judgment  for  defendant  on  the  pleadings.     There  is  nothing 
illegal,  immoral,  or  unconscionable   in  such  a  contract.     Schencko  v. 
Meier,  4  Mo.  Ct.  Appeals  (St.  Louis)  566. 

1307.  A  contract  for  the  deliver}-  of  property  being  entire,  the 
promissee  is  not  bound  to  receive  a  part,  though  the  parties  may  by 
consent,  sever  the  contract.     In  an  action  upon  two  due  bills  payable 
in    specific  property,  one  requiring  demand,  the  other  not,  and  the 
parties  having  severed  the  contract  by  delivery  and  receiving  part  of 
the  property  from  time  to  time,  held,  that  the  plaintiff,  to  maintain  his 
action,  must  show  a  demand  and  refusal  as  to  the  first  due  bill,  and  as 
to    the   residue   remaining   undelivered   on   the   second.      Widner  v. 

Walsh,  3  Colo.  548. 

1308.  When  one  person  represents  that  he  owes  to  the  debtor  of 
another  a  debt  of  equal  amount,  substitutes  himself  in  place  of  the 
debtor  by  parol  agreement  with  the  creditor,  fixes  a  time  for  paj'ment, 
and  thus  induces  the  creditor  to  discharge  the  debtor  and  trust  exclu- 
sively to  him,  his  undertaking  to  pay  is  not  collateral,  but  original, 
and  performance  may  be  enforced  whether  he  ever  in  fact  owed  any 
thing  to  the  debtor  in   whose  stead  he  agreed  to  be  bound  or  not. 
Eden  field  v.  Canady,  60  Ga.  456. 

1309.  It  is  not  a  good  defence  to  a  promise  in  writing  under  seal, 
to  pay  a  sum  of  money,  for  value  received,  that  it  was  voluntary.     The 
statutes  concerning  evidence   (Rev.,  p.  380,  §  16)  which  permit  a  de- 
fendant to  plead  and  set  up  fraud  in  the  consideration,  and  (Rev.,  p. 
387,  §  52)  to  show  want  of  sufficient  consideration  as  a  defence  to  a 
sealed  instrument  established  new  rules  of  evidence,  but  were  not  in- 
tended to  abolish  all  distinctions  between  simple  contracts  and  special- 
ties.    Aller  v.  Aller,  40  N.  J.  Law  Reports,  447. 

1310.  A  planter  who  has  agreed  to  consign,  and  pay  commission 
on  his  entire  crop  to  his  factors,  in  consideration  of  certain  promises 
and  stipulations  in  his  favor  made  by  the  factors,  is  released  from  his 
obligation  to  consign  and  pay  such  commission  on  whatever  balance  of 
his  crop  he  may  have  on  hand,  when  the  factors  shall  fail  and  refuse  to 
comply  with  their  stipulations  ;  more  particularly  when  the  failure  of 
the  factors  to  perform  their  part  of  the  contract,  disables  the  planter 


186  MONROE'S  DIGEST 

from  performing  his  part  of  it.     Nalle  &  Cammack  v.  A.  L.  D.  Conrad, 
et  al,  30  La.  503. 

1311.  Defendant  signed  a  written  agreement  without  reading  it, 
and  did  not  contain  the  contract  as  in  fact  made,  is  no  ground  for  the 
introduction  of  parol  evidence  to  vary  its  terms,  etc.     It  is  not  the 
duty  of  courts  to  relieve  parties  from  the  results  of  their  gross  negli- 
gence.    Bostwick  v.  Duncan,  Johnston  &  Co.,  60  Ga.  383. 

1312.  A  written  contract  containing  terms  not  presenting  a  case  of 
latent  ambiguity,  are  not  to  be  varied  by  extrinsic  and  parol  evidence, 
the  expression  "  payable  as  convenient "  cannot  reasonably  be  under- 
stood as  extended  to  excuse  the  defendants  in  any  event,  from  making 
any  payment  at  all.     It  can  only  mean  that  some  indulgence  as  to  the 
length  of  credit  was  to  be  allowed  to  the  debtors.     The  service  re- 
quested in  the  contract  has  been  performed  and  the  price  agreed  upon, 
as  the  compensation  for  that  service  is  yet  unpaid,  though  due  and 
payable.     Black  v.  Bachelder,  et  al.,  120  Mass.  17 J. 

1313.  When  it  is  attempted  to  be  shown  by  parol  evidence  that  the 
operation  of  a  contract  was  to  be  limited  to  a  particular  time,  the  evi- 
dence thereof  must  be  positive  and  clear.     Shepler  v.  Scott,  85  Penn. 
329. 

1314.  Written  contracts  are  to  be  interpreted  by  the  court,  and 
their  ambiguities  explained  by  surrounding  facts,  not  by  the  interpre- 
tation of  witnesses.     Home  Life  Ins.  Go.  v.  Potter,  et  al.,  4  Mo.  Ct. 
Appeals  (St.  Louis)  594. 

1315.  Contract  signed  by  one  party  only,  is  accepted  by  the  other 
party,  it  becomes  binding  upon  both  parties,  the  same  as  if  signed  by 
both.     Brandon  Mfg.  Co.  v.  Morse,  48  Vt.  322. 

1316.  Contract  in  writing  for  the  sale  and  delivery  of  a  certain 
quantity  of  wood  at  a  stipulated  price  per  cord,  did  not,  in  terms,  fix 
the  time  of  payment.     Held,  that  the  law  fixed  the  time  as  on  demand 
after  delivery,  and  that  the  fact  that  the  purchaser  made  voluntary  pay- 
ments to  the  vendor  before  delivery,  did  not  vary  the  contract.     Ibid. 

1317.  An  assignee  of  a  lease  without  warranty  cannot  set  up  a  de- 
fect of  title  in  defence  to  an  action  upon  a  note  given  in  consideration 
of  the  assignment.     In  such  case  the  assignee  occupies  the  same  posi- 
tion as  a  purchaser  of  real  estate  under  a  deed  of  quit  claim.     Sanborn 
v.  Cree,  3  Colo.  149. 

1318.  In  an  action  on  a  contract  for  the  transfer  to  the  plaintiff,  by 
the  defendant,  of  a  certain  promissory  note,  an  instruction  to  the  jury, 
that,  if  such  contract  was  made  for  a  valuable  consideration,  the  trans- 
fer should  "  be  made  by  indorsement,  unless  a  different  agreement  is 
made  by  the  parties,"  and  that  the  burden  of  proof  is  upon  the  defend- 
ant to  establish  the  latter  agreement,  is  correct.     Wade  v.  Guppingerr 
60  Ind.  376. 

1319.  Where  two  parties  agree  as  to  what  shall  be  done  in  case 
one  party  fails  to  perform  his  part  of  the  contract,  and  upon  such 
failure  the  thing  agreed  upon  is  done,  no  action  lies  for  such  failure, 
the  contract  being  discharged  by  the  fulfilment  of  its  terms.     Heel  v. 
Ewing,  4  Mo.  Ct.  Appeals  (St.  Louis)  569. 

1320.  The  rule  which  forbids  the  varying  of  written  instruments 
by  parol  proof  applies  only  to  the  parties  to  the  writing.      Whitney  v, 
Cowan,  55  Miss.  626. 


OF   STANDARD   DECISIONS.  187 

1321.  In  the  absence  of  a  stipulation  as  to  the  time  when  an  act  i& 
contracted  to  be  done,  the  law  allows  a  reasonable  time  for  its  perform- 
ance.    What  is  reasonable  time  depends  upon  the  nature  and  character 
of  the  thing  to  be  done,  the  circumstances  of  the  case,  and  the  difficul- 
ties attending  its  accomplishment.     As  an  abstract  question,  what  ia 
reasonable  time  may  be  one  of  law  ;  but  unless  the  facts  are  admitted,, 
its  determination  becomes  a  mixed  question  of  law  and  fact.     In  an 
action  to  rescind  a  contract,  a  proffer  to  perform,  made  in  defence,, 
should  show  an  ability  to  comply,  or  a  reasonable  prospect  of  being 
able  to  do  so.     Hart  v.  Bullion,  48  Texas,  278. 

1322.  Where  one  brings  an  action  to  recover  compensation  for  pro- 
curing a  sale  of  real  estate  under  a  special  contract,  it  is  not  necessary 
to  show  that  he  had  a  license  to  act  as  a  real  estate  broker.     Shepler 
v.  Scott,  85  Penn.  St.  329. 

1323.  A  party  may  not  stand  by  and  see  work  in  the  erection  of 
a  building  progress  to  completion,  and  then  for  the  first  time  object 
that  the  work  was  not  done  in  strict  accordance  to  the  plan,  refuse  pay- 
ment and  charge  the  builder  with  the  cost  of  reconstruction.     The 
builder  is  in  such  case,  entitled  to  recover  what  the  work  is  reason- 
ably worth.     When  work  is  done  under  a  contract,  the  terms  of  the 
contract  should  settle  the  amount  to  be  paid,  unless  it  is  shown  that  in. 
consequence  of  variations  from  the  plan,  the  compensation  agreed  upon 
should  be  diminished,  and  the  proper  measure  of  damages  in  such  case 
is  the  diminution  of  the  value  of  the  building  resulting  from  the  varia- 
tion.    Schoefer,  et  al.  v.  Gildea,  et  al.,  3  Colo.  15. 

1324.  To  introduce  a  new  term  into  a  written  contract,  the  evi- 
dence of  the  agreement  of  the  parties  to  do  so  must  be  clear  and  dis- 
tinct, and  that  the  contract  was  executed  upon  the  faith  of  such  collat- 
eral agreement.     Railroad  Co.  v.  Hodgens,  85  Penn.  St.  501. 

1325.  When  the  payment  of  the  purchase  money  is  a  condition 
precedent  to  the  delivery  of  a  deed  of  convej'ance,  the  refusal  to  pay 
the  whole,  or  any  balance  due,  leaves  the  vendor  at  liberty  to  rescind 
the  contract.     Where  the  vendor  receives  part  of  the  purchase  moneyr 
he  must,  before  seeking  relief  in  a  court  of  equity  against  the  vendee, 
return,  or  offer  to  return,  the  amount  received,  with  interest.     Where 
A.  held  title  to  reality  in  trust  for  B.,  and  at  B.'s  request  conveyed  to- 
C.,  the  payment  of  the  purchase  money  being  a  condition  precedent  to- 
the  delivery  of  the  deed,  and  the  deed  having  been  delivered,  without 
compliance  with  that  condition,  held,  that  on  refusal  of  payment,  B. 
had  his  election  either  to  pursue  his  remedy  at  law  against  C.,and  thu» 
affirm  the  contract,  or  to  rescind  the  contract,  and  seek  equitable  re- 
lief.    Hamil  v.  Thompson,  et  al.,  3  Colo.  518. 

1326.  A  contract  to  answer  for  the  debt  of  another  must  not  only 
be  in  writing,  but  based  upon  a  sufficient  consideration.     Langford  v. 
Freeman,  60  Ind.  46. 

1327.  That   in   consideration    of    supplies    furnished,    defendant 
agreed  that  crop  should  belong  to  claimants  ;  that  he  would  deliver  it 
to  them  by  October  15th,  thereafter,  or,  in  lieu  thereof,  pay   them 
$500  ;  that,   on  failure  so  to  do,  he  should  be  considered  liable  for 
breach  of  trust,  and  they   could  either  take  possession  of  the  crop  or 
sue  for  that  amount,  with  twelve  per  cent,  interest,  etc. ;  that,  in  order 
to  secure  the  fulfilment  of  the  contract,  defendant  conveyed  and  de- 


188  MONROE'S  DIGEST 

livered  to  claimants  certain  personalty,  which  was,  however,  to  remain 
in  his  possession ;  that  defendant  waived  homestead  and  exemption 
rights,  was  a  mortgage,  and  did  not  convey  a  title.  Lee  v.  Clark, 
Hosser  &  Co.,  60  Ga.  639. 

1328.  Contract  founded  upon  mutual  and  concurrent  promises,  af- 
ford sufficient  legal  consideration  for  the  support  of  each  other.     Missi- 
quoi  Bank  v.  Sabin,  48  Vt.  239. 

1329.  The  defendant  subscribed  for  shares  in  a  patent  right,  to  be 
held  by  him  without  payment  therefor,  otherwise  than  by  inducing  others 
to  subscribe  for  shares  and  give  their  notes  therefor  for  greatly  more  than 
the  value  of  the  shares  ;  the  notes  afterwards  came  into  his  hands  by 
purchase,  and  were  by  him  negotiated  for  money,  and  paid  by  the  makers. 
Held,  that  these  facts  would  not  entitle  the  makers  to  maintain  an  action 
against  him  for  money  had  and  received.     Lane  v.  Smith,  68  Me.  178. 

1330.  The  maxim,  that  "  the  express  mention  of  one  thing  implies 
the  exclusion  of  another,"  is  ordinarily  used  to  control,  limit,  or  re- 
strain the  otherwise  implied  effect  of  an  instrument,  and  not  to  u  an- 
nex  incidents  to  written  contracts  in  matters  with  respect  to  which 
they  are  silent."     Morrow  v.  Morgan,  48  Texas,  304. 

1331.  If  a  creditor  receives  a  partial  payment  before  any  breach  of 
contract,  and  agrees  to  look  to  another  source  than  the  promissor  for 
payment,  such  new  agreement  is  binding,  and  the  original  contract  is 
abandoned  or  waived  ;  but  if  such  agreement  is  made  only  to  induce 
performance,  and  prevent  a  breach  of  the  original  contract,  it  is  with- 
out consideration,  and  cannot  be  supported.     When  a  valid  contract 
subsists  between  the  parties,  it  is  competent  for  them,  at  any  time  be- 
fore its  breach,  to  waive,  annul  or  dissolve  the  agreement,  or  to  change 
•or  modify  its  terms,  and  the  mutual  agreement  of  the  parties  is  a  suf- 
ficient consideration.     Burkham  v.  Mastin,  54  Ala.  123. 

1332.  A  contract  not    under   seal,   wherein  one  person  makes  a 
promise  to  another  for  the  benefit  of  a  third  person,  such  third  person 
may  maintain  an  action  on  it,  though  the  consideration  did  not  move 
from  him.     Price  v.  Trusdell,  28  N.  J.  Eq.  200. 

1333.  In  a  contract  for  the  transportation  of  freight,  it  was  pro- 
vided "  that  in  the  event  of  either  of  the  parties  failing  to  comply  with 
the  terms  of  the  contract,  the   party   so  failing  was  to  pay  the  other 
party  the  sum  of  one  thousand  dollars,  fixed  and  settled  damages." 
Held,  that  this  was  not  intended,  nor  to  be  construed  as  meaning  a 
penal  sum,  but  as  fixed,  settled   and  liquidated  damages,  and  the  de- 
fendant was  not  permitted  to  show  that  the  plaintiff  had  not  sustained 
actual  damages  to  that  amount.     Ivinson   &  Co.  v.  Althorp,  1  Wyo- 
ming, S.  Ct.  Rpts.  71. 

1334.  Where  property  was  sold  and  delivered  to  a  third  person, on 
the  faith  of  the  promise  of  defendants  to  accept  his  drafts  on  them  for. 
the  purchase  money,  a  specific  performance  of  the  contract  will  be  en- 
forced.    Sauls  bury,  Reapers  &  Co.  v.  Blandys,  60  Ga.  646. 

1335.  Where  at  the  execution  of  a  writing  a  stipulation  has  been 
entered   into,  a    condition   annexed,  or   a   promise   made  by   word  of 
mouth,  upon  the  faith  of  which  the  writing  has  been  executed,  parol 
evidence  is  admissible,  although  it  may  vary  and  materially  change  the 
terms  of  the  contract.     In  debt  upon  a  bond  the  defendant  offered  to 
^>rove  that  the  bond  was  given  for  unpaid  purchase  monejr  of  a  certain 


OF   STANDARD   DECISIONS.  189 

lot;  that  to  induce  the  purchase  of  said  lot,  plaintiff  verbally  agreed 
that  if  defendant  did  not  like  the  property,  plaintiff,  on  request  of  de- 
fendant, would  take  back  the  same,  and  pay  defendant  a  premium  and 
cost  of  his  improvement;  that  there  should  be  no  personal  liability  by 
defendant  for  the  purchase  money,  and  that  plaintiff  should  look  solely 
to  the  property  for  payment ;  that  plaintiff  was  not  to  part  with  the 
bond  or  mortgage;  that  when  defendant  asked  that  the  foregoing 
agreement  should  be  inserted  in  the  papers  being  executed,  plaintiff" 
said  it  was  unnecessary,  that  his  bond  was  sufficient,  and  that  defendant 
has  asked  plaintiff  to  take  back  the  property  as  stipulated,  which  was 
refused.  The  court  below  rejected  these  offers.  Held,  that  they 
should  have  been  received.  Greenawalt  v.  Kohne,  85  Penn.  369. 

1336.  In  order  to  take  a  parol  contract  for  the  sale  of  land  out  of 
the  operation  of  the  statute  of  frauds,  its   terms  must  be  shown  by 
full,  complete,  satisfactory  and  indubitable  proof.     The  evidence  must 
define  the  boundaries  and  indicate  the  quantity  of  the  land.     It  must- 
fix  the  amount  of  the  consideration.     It  must  establish  the  fact  that 
possession   was  taken  in  pursuance  of  the  contract,  and  at  or  immedi- 
ately after  the  time  it  was  made,  the  fact  that  the  change  of  possession 
was  notorious,  and  the  fact  that  it  had  been  exclusive,  continuous  and 
maintained.     And  it  must  show  performance  or  part  performance  by 
the  vendee  which  could  not  be  compensated  in  damages  and  such  as 
would   make  rescission  inequitable  and  just.     Defendant  in  ejectment 
claimed  title  to  land  by  virtue  of  a  parol   sale,  possession  taken  and 
maintained,  improvements,  etc.     A  deed  was  offered  in  evidence,  signed 
by  plaintiff,  which  contained  a  description  of  the  property,  and  recited 
the  consideration,  but  which  was  never  delivered  to  defendant.     Heldr 
reversing   the  court  below,  that   the  deed,  taken  in   connection  with, 
other  facts,  was  sufficient  evidence  of  a  parol  contract  to  take  the  case 
out  of  the  operations  of  the  Statute  of  Frauds.     Hart  v.  Carroll,  85 
Penn.  St.  508. 

1337.  A  court  of  equity  will  not  extricate  a  party  from  the  conse- 
quences of  his  own  acts  voluntarily  committed  to  carry  out  an  illegal 
contract  relating  to  the  entry  of  public  lands.     Generally,  those  who 
violate  law  in  their  dealings  with  one  another,  are  left  precisely  in  the 
same  condition  they  placed  themselves.     Ainsworth  v.  Miller,  20  Kan- 
sas, 220. 

1338.  The  reduction  of  an  agreement  to  writing,  signed  by  the 
parties,  is  not  necessary  to  its  perfection  as  a  contract,  unless  it  clearly 
appears  that  the  parties  intended  that  it  should  be  complete  as  a  con- 
tract, until  so  written  and  signed.     Montague,  et  al.  v.  Weil  Bro.,  30 
La,  50. 

1339.  A   promise  to  pay  for  property  purchased,  "  out  of  the  pro- 
ceeds of  the  first  cotton  ginned,"  is  evidence  conducing  to  show  the 
time  of  payment,  but  does  not  prove,  or  tend  to  prove,  that  the  seller 
of  the  propert}'  is  to  look  for  his  pay  alone  to  the  profits  made  in  gin- 
ning that  season.      White  v.  Chaffin,  32  Ark.  59. 

1340.  When  an  instrument  is  prepared  by  the  party  to  be  held 
liable  under  it,  and  it  is  ambiguous  in  its  terms,  that  construction  is  ta 
be  adopted  which  is  most  favorable  to  the  promissee.     Atlantic  Ins. 
Co.  v.  Manning,  3  Colo.  224. 

1341.  An  act  which  is  forbidden  by  a  statute,  or  the  common  law, 


190  MONROE'S  DIGEST 

whether  it  be  malum  in  re  or  merely  malum  prohibitum,  indictable,  or 
only  subject  to  a  penalty  or  forfeiture,  cannot  be  the  foundation  of  a 
valid  contract.  Lindsey  v.  Rottaken,  Collector,  32  Ark.  619. 

1342.  When  one  party  submits  a  proposal  for  a  contract  to  another, 
and  the  latter's  acceptance  of  the  proposal  includes  a  material  modifi- 
cation of  the  proposal,  no  contract   will  result  until  the  modification 
has  been  acquiesced  in  by  the  party  making  the  proposal.     Nicholas, 
Gonnell  v.  Alexander  Hill,  30  La.  251. 

1343.  Where  two  contracts  between  the  same  parties  are  distinct 
and  to  be  performed  at  different  times,  the  non-performance  of  the  one 
is  no  defence  to  an  action  on  the  other.      Turner  v.  Rogers,  121  Mass. 
12. 

1344.  When  it  clearly  appears  from  the  evidence  that  the  intent  of 
parties  was  to  form  a  written  contract,  neither  party  will  be  bound* 
until  the  contract  has  been  reduced  to  writing,  and  signed  by  both.     No 
alleged  verbal  agreement,  in  such  case,  can  be  invoked  by  either  party 
against  the  other.     Louisa  Fredericks,  Tutrix  v.  Robert  Fasnacht,  30 
La.  117. 

1345.  Where  in  a   contract  to  deliver  a  certain  thing,  no  time  for 
the  delivery  is  fixed,  the  legal  implication  is  that  it  shall  be  delivered 
•within  a  reasonable   time  from  the  date  of  the  contract.     Robert  H. 
Bartley  v.  City  of  New  Orleans,  30  La.  264. 

1346.  Where  no  fiduciary  relation  exists  between  the  parties,  and 
they  are  of  legal  capacity,  however  disadvantageous  or  improvident  a 
•contract  between  them  appears,  a  court  of  equity  will  not  relieve 
against  it,  until  the  party  seeking  to  avoid  it  clearly  proves  that  it  was 
the  result  of  fraud,  mistake,  surprise  or  undue  influence  practiced  upon 
him.     Malone  v.  Kelly,  54  Ala.  532. 

1347.  A  contract  must  be  held  to  have  been  made  when  the  last 
act  necessary  to  complete  it  was  done,  when  no  mutual  act  remains  to 
be  performed  to  entitle  either  party  to  enforce  it.     Northampton  M.  L. 
S.  Ins.  Co.  v.  Tattle,  40  N.  J.  Law  Reports,  476. 

1348.  Contract  founded  on  an  act  which  a  statute  prohibits  under 
&  penalty  is  void,  although  the  State  does  not  expressly  so  provide, 
and  the  subsequent  repeal  of  the  statute,  without  any  saving  clause  as 
to  penalties  already  incurred,  will  not  validate  a  contract  void  under 
the  law  in  existence  when  the  contract  was  made.      Woods  v.  Arm- 
strong, 54  Ala.  150. 

1349.  Contract  having  an  unlawful  or  immoral  cause  are  not  merely 
void  themselves,  but  as  a  rule,  cannot  be  the  basis  of  any  valid  auxil- 
iary contract.     Cummings  v.  Saux,  30  La.  207. 

1350.  Where  the  evidence  shows  that  the  parties  intended,  origi- 
nally, that  the  contract  of  lease  should  be  reduced  to  writing,  neither 
will  be  bound  until  it  is  signed  by  both.     Miguel  Avendano  v.  /.  W. 
Arthur  &  Co.,  30  La.  316. 

1351.  The  written  agreement  of  a  debtor  who  has  borrowed  certain 
bonds,  to  return  bonds  of  the  same  description,  for  the  same  amount, 
.at  a  certain  term,  is  not  a  promissory  note  for  the  amount  of  the  bonds. 
The  obligations  is  to  return  the  specific  bonds  at  the  time  fixed,  or  pay 
their  value  at  that  time.     Blonin  v.  Liquidators  of  Haft  &  Hebert,  30 
La.  7 1 4. 

1352.  The  laws  which  subsist  at  the  time  and  place  of  making  of 


OF  STANDARD   DECISIONS.  191 

a  contract,  and  where  it  is  to  be  performed,  enter  into  and  form  a  part 
of  the  contract;  and  that,  whether  such  laws  affect  its  validity,  con- 
struction, discharge  or  enforcement.  Roberts'  Adm'rs  v.  Cocke,  Etc.; 
also,  Murphy  v.  Gaskins1  Adni'rs,  28  Grattan  (Va.)  207. 

1353.  A  contract  is  binding  when  signed  by  the  party  making  it, 
though  he  may  use  an  English  translation  of  a  French  name,  as  Seam 
for  Couture,  in  his  signature  thereto.     Auger  v.  Conture,  68  Me.  427. 

1354.  One  cannot  recover  for  a  breach  of  a  contract  who  is  the 
•cause  or  occasion  of  its  occurrence.      Winch  v.  Mut.  Benefit  Ice  Co., 
86  N.  Y.  618. 

1355.  A  party  entitled  to  rescind  a  contract  on  the  ground  of  fraud 
loses  tbat  right  by  bringing  an  action  to  enforce  the  contract  after 
knowledge  of  the  fraud.     Acer  v.  Hotchkiss,  97  N.  Y.  395. 

1356.  A  promise  by  one  party  to  do  that  which  he  is  already  under 
a  legal  obligation  to  do  is  not  a  sufficient  consideration  to  support  a 
•contract  on  the  part  of  the  other  party.     Seybolt  v.  N.  Y.  L.  E.  &  W. 
R.  R.,  95  N.  Y.  502. 

1357.  The  word  u  sold  "  in  a  contract  of  sale  of  chattels  does  not 
necessarily  impart  an  executed  contract.     Anderson  v.  Read,  106  N.  Y. 
-333. 

1358.  Where  a  contract  is  partly  printed  and  partly  in  writing, 
the  written  matter  must  prevail  over  the  printed  in  case  of  conflict  be- 
tween them.     Hill  v.  Miller,  76  N.  Y.  32. 

1359.  Reformation  of  contracts.      The  jurisdiction  of  a  court  of 
-equity  to  reform  a  written  instrument,  in  a  case  free  from  fraud,  can 
only  be  exercised  where  it  appears  clearly  that  there  has  been  a  mutual 
mistake  on  the  part  of  the  parties  as  to  the  contents  of  the  instrument 
itself.     Where  both  knew  its  character  and  contents  when  they  exe- 
cuted it,  it  cannot  be  reformed  merely  because  one  of  the  parties  was 
^entitled  to  and  would  have  exacted  a  different  instrument  had  he  known 
•of  extrinsic  facts  rendering  it  to  his  interest  so  to  do.      Whittemore  v. 
Farrinqton,  76  N.  Y.  452. 

1360.  A  contract  with  persons  contemplating  the  formation  of  a 
•corporation  in  reference  to  matters  relating  to  such  corporation  when 
it  shall  be  formed  is  a  contract  with  such  persons  personally  and  not 
with  the  corporation.     Cannody  v.   Powers,  (Mich.)  26  N.  W.  Rep. 
-801  ;  Penn  Match  Co.  v.  Hapgood,  (Mass.)  7  N.  E.  Rep.  22  ;   Vermont 
Cent.  R.  R.  v.  Clayes,  21  Vt.  30  ;  Dayton,  Etc.,  Turnpike  Co.  v.  Coy, 
13  Ohio  St.  84. 

1361.  A  corporation  may  become  bound  to  fulfil  a  contract  made 
in  its  name  and  behalf  in  anticipation  of  its  existence,  by  afterwards 
.accepting  the  benefits  of  the  contract.     Low  v.  Conn.  &  P.  R.  R.  R., 
45  N.  H.  370. 

1362.  A  party  who  signs  a  written  contract  without  reading  it  or 
•causing  it  to  be  read  to  him,  where  there  is  an  opportunity  afforded 
him  of  doing  so  is  guilty  of  such  negligence  as  will  prevent  him  from 
-escaping  the  legal  effect  of  the  contract.     Keller  v.  Orr,  (Ind.)  7  N.  E. 
Rep.   195 ;  Gulliher  v.  Chicago  R.  I.  &  P.  R.  R.  Co.,  (Iowa)  13  N.  W. 
Rep.  429  ;  Moran  v.   McLarty,  75  N.  Y.  25  ;  McKinney  v.  Merrickt 
<Iowa,  23  N.  W.  Rep.  767  ;  McComack  v.  Molburg,  43  Iowa,  561. 

1363.  An  agreement  between  the  agent  of  an  insurance  company 
and  an  applicant  for  insurance,  whereby  the  former,  without  authority 


192  MONROE'S  DIGEST 

from  the  company,  accepted  articles  of  personal  property  by  way  of 
satisfaction  of  a  premium  payable  in  money,  is  a  fraud  upon  the  com- 
pany, and  no  valid  contract  arises  therefrom.  Hoffman  v.  John  Han- 
cock Mutual  Life  Insurance  Co,  U.  S.  I  C.  92,  161. 

1364.  While  negotiations  were  still  pending  between  an  agent  of 
the  company  and  the  applicant,  touching  the  precise  terms  of  a  con- 
tract of  payment,  a  friend  paid  the  premium,  but  concealed  from  the 
agent  the  condition  of  the  applicant,  who  was  then  in  extremis,  and 
died  in  a  few  hours.     The  agent  in  ignorance  of  the  facts,  delivered  the 
policy.     Heidi  that  no  valid  contract  arose  from  the  transaction.     Pied- 
mont and  Arlington  Ins.  Co.  v.  Ewing,  Administrator,  U.  S.  S.  Ct.  92r 
377. 

1365.  The  constitution  of  a  State  cannot  impair  the  obligation  of 
a  contract.    County  of  Moultrie  v.  Rockingham  Ten-Cent-Savings  Bankt 
U.  S.  S.  Ct.  92,  631. 

1366.  A  promise  made  in  the  Southern  States  to  pay  a  sum  of 
money  specified  (and  acknowledged  to  be  due)  "  as  soon  as  the  cro[> 
could  be  sold  or  the  money  raised  from  any  other  source,"  is  a  promise 
to  pay  the  money  specified  upon  the  occurrence  of  either  of  the  events 
named  in  the  paper,  or  after  the  lapse  of  a  reasonable  amount  of  time 
within  which  to  procure,  in  one  mode  or  in  the  other,  the  money  neces- 
sary to  meet  the  liability.     Nunez  v.  Daniel,  19  Wall.  U.  S.  560. 

136T.  Where  an  action  against  a  life  insurance  company  brought 
by  an  administrator  on  a  policy  purporting  to  insure  the  life  of  the  in- 
testate, one  of  the  defences  set  up  was  that  the  answer  of  the  latter  to- 
certain  questions  propounded  to  him  at  the  time  of  his  application 
touching  his  habits  of  life,  etc.,  were  untrue,  the  burden  of  proving  the 
truth  of  such  answers  does  not  rest  on  the  plaintiff.  Piedmont  and 
Arlington  Ins.  Co.  v.  Ewing,  Administrator,  U.  S.  S.  Ct.  92,  377. 

1368.  Where  a  party  knowing  the  pecuniary  condition  of  a  debtor,, 
purchased  a  claim  against  him  of  an  ascertained  amount,  an  opinion, 
however  erroneous,  expressed  by  the  seller  as  to  the  value  of  the  claim,, 
does  not  affect  the  validity  of  the  sale.     Under  such  circumstances,, 
each  party  is  presumed  to  rely  upon  his  own  judgment.     Blease  v. 
Garlington,  U.  S.  S.  Ct.  1,  92. 

1369.  Mandamus  is  not  the  proper  remedy  to  enforce  the  per- 
formance of  a  duty  imposed  upon  the  officers  of  a  private  corporation 
organized  for  profit  merely,  where  such  duty  is  not  specifically  enjoined 
by  law  and  where  there  is  a  plain  and  adequate  remedy  either  at  law 
or  in  equity.     State,  Ex  rel.  Freon  v.  Enterprise  Carriage  Co.,  39  Ohio- 
State.     Boone  on  Corporations. 

1370.  The  capital  stock  of  a  corporation  is  the  money  or  property 
put  into  the  corporate  fund  by  the  subscribers  for  said  stock  which 
fund  becomes  the  property  of  the  corporation.     A  share  of  said  capital 
stock  is  the  right  to  partake  according  to  the  amount  put  into  the  fund 
of  the  surplus  profits  and  upon  dissolution  of  the  corporation  of  the- 
fund  remaining  after  payment  of  debts.     A  subscriber  may  become  the 
owner  of  a  given  number  of  shares  but  not  in  the  sense  that  he  may 
take  away  those  shares  out  of  the  corporate  fund ;  and  the  corporation 
has  no  power  and  cannot  be  compelled  while  continuing  in  legal  ex- 
istence and  carrying  on  the  business  for  which  it  was  created  to  issue 
and  deliver  such  shares.     All  that  the  corporation  can  do  is  to  issue* 


OF   STANDARD   DECISIONS.  193 

written  evidence  of  the  existence  and  ownership  of  such  shares  known 
as  stock  certificates.     Burrall  v.  Bush.  R.  R.  Co.,  75  N.  Y.  211. 

1371.  Where  two  persons,  for  a  consideration  sufficient  as  between 
themselves,  covenant   to   do   some   act,  which,  if  done,  would   inci- 
dentally result  in  the  benefit  of  a  mere  stranger,  he  has  not  a  right  to 
enforce  the  covenant,  although  one  of  the  contracting  parties  might 
enforce  it  as  against  the  other.     L.  0.  S.  R.  R.  Go.  \.  Curtiss,  80  N. 
Y.  219. 

1372.  Where  the  holder  of  a  promissory  note,  ostensibly  acting 
for  himself,  sells  the  same  for  a  valuable  consideration,  and  upon  the 
sale,  promises  orally  that  the  note  is  good  and  will  be  paid  at  ma- 
turity, the  promise  is  not  within  the  statute  of  frauds,  and  the  prom- 
issor  is  liable  thereon  in  case  of  non-payment.     The  promise  may  be 
regarded,  not  as  one  to  answer  for  the  default  of  the  maker,  but  as  one 
to  pay  the  purchaser  for  the  money  had,  in  case  the  maker  does  not. 
Milks  v.  Rich,  80  N.  Y.  269. 

1373.  A   party  binding  himself  to  deliver  personal  property  can 
only  be  relieved  in  this  respect  on  the  ground  of  clear  refusal  of  the 
other  party  to  receive  or  becoming  disabled  to  perform  his  part  of  the 
contract.     Smooths  Case,  15  Wall.  U.  S.  37. 

1374.  A  party  to  whose  duty  it  is  to  prepare  a  written  contract 
according   to  a   previous   agreement,  if  he   prepares  one  materially 
changing  the  terms  of  the  previous  agreement,  and  delivers  it  as  in  ac- 
cordance therewith,  commits  a  fraud  entitling  the  other  to  relief.     Hay 
v.  8.  F.  Ins.  Co.,  77  N.  Y.  235. 

1375.  Where  the  purpose  of  a  promise  to  pay  the  debt  of  a  third 
person  is  to  secure  a  benefit  to  the  promissor,  by  relieving  his  property 
from  a  lien,  or  securing  or  confirming  his  possession,  the  promise  is 
original  and  not  collateral,  and  so  is  not  within  the  statute  of  frauds. 
Nettel  v.  Lightstone,  77  N.  Y.  96. 

1376.  Where  a  party  has  elected  to  sue  upon  a  written  contract  as 
it  is,  and  has  been  defeated,  he  is  bound  by  that  election,  and  cannot 
thereafter  bring  an  action  to  reform  the  contract.     Steinbach  v.  Relief 
F.  Ins.  Co.,  77  N.  Y.  498. 

1377.  Equity  will  not  readily  set  aside  a  reasonable  contract,  made 
for  the  sake  of  peace,  though  want  of  money  may  have  been  an  inducing 
cause  which  one  of  the  parties  had  to  the  making  of  it.     French  v.  Shoe- 
maker, 14  Wall.  U.  S.  315. 

1378.  Where  doubt  exists  as  to  the  construction  of  an  instrument 
prepared  by  one  party,  upon  the  faith  of  which  the  other  party  has  in- 
curred  obligations   or   parted   with    his   property,  that   construction 
should  be  adopted  which  will  be  favorable  to  the  latter.     The  principle 
applied.     Noonan  v.  Bradley,  9  Wall.  U.  S.  395. 

1379.  While  it  is  the  province  of  the  courts  to  construe  contracts, 
yet  where  the  meaning  of  a  contract  is  obscure  and  depends  upon  facts 
aliunde,  in  connection  with  the  written  language,  the  question  of  con- 
struction may  be  one  of  fact  for  the  jury.     First  Nat.  Bank  of  Spring- 
field v.  Dana,  79  N.  Y.  108. 

1380.  Defendant  was  the  editor  of  a  newspaper  owned  by  a  cor- 
poration, a   portion   of  the  stock  of  which  he  held.     W.,  who  was 
plaintiff's  president,  owning  a  majority  of  its  stock,  was  also  a  stock- 
holder in  said  corporation.     Defendant  was  advised  by  the  publisher 

13 


194  MONROE'S  DIGEST 

of  the  paper,  who  had  been  to  see  W.  and  other  stockholders,  that  they 
had  concluded  to  levy  an  assessment  upon  the  stock,  and  that  they  had 
agreed  to  furnish  the  money  for  his  share  upon  pledge  of  his  stock. 
It  was  represented  to  defendant  that  W.  had  paid  his  subscription  to 
the  stock  in  full,  that  there  was  to  be  an  additional  assessment  upon 
all  the  stock,  and  that  W.  was  to  pay  his  share.  The  note  in  suit  was 
thereupon  made,  and  delivered  to  the  publisher.  W.  had  not  paid  his 
assessment,  nor  had  he  paid  in  full  for  his  stock.  At  a  subsequent 
meeting  of  the  stockholders  of  the  newspaper  company  it  was  agreed 
that  defendant  should  withdraw  from  it  and  give  up  his  stock,  the 
stockholders  agreeing  to  assume  payment  of  the  note  ;  and  defendant 
thereupon  surrendered  his  stock.  Upon  being  advised  that  a  claim 
was  made  against  him,  defendant  wrote  to  plaintiff,  stating  the  facts, 
and  that  if  sued  he  would  be  obliged  to  sue  the  compan}'  and  its  stock- 
holders. Plaintiff's  cashier  thereafter  wrote  defendant,  proposing  that 
if  defendant  would  sue  the  newspaper  company  for  the  performance  of 
the  contract  to  pay  the  note,  it  would  pay  one-half  the  cost,  adding 
that  if  the  proposition  suits  it  will  avoid  the  necessity  of  a  suit  upon 
the  note.  An  agreement  was  entered  into  upon  the  basis  of  this  letter. 
Defendant  brought  an  action  against  said  company,  obtained  judg- 
ment, and  upon  return  of  execution  unsatisfied,  brought  suit  against 
the  stockholders,  which  was  pending  when  this  action  was  commenced. 
The  court  directed  a  verdict  for  plaintiff;  held,  error ;  that  if  the  letter 
of  plaintiff's  cashier  stood  alone,  it  was  a  question  whether  the  con- 
tract was  not  satisfied  by  bringing  the  action  and  obtaining  the  judg- 
ment against  the  company  ;  if  all  the  letters  were  to  be  considered  it 
was  not  clear  that  a  suit  against  the  stockholders  was  not  a  part  of  the 
arrangement ;  and  that  this  was  a  question  for  the  jury.  First  Nat. 
Bank  of  Springfield  v.  Dana,  79  N.  Y.  108. 

1381.  Plaintiff  contracted  to  convey  to  H.  certain  premises  for 
J$l,350;  $300  was  paid  down  and  the  balance  was  agreed  to  be  paid  in 
annual  installments.     H.  assigned  his  contract  to  defendants  in  pay- 
ment of  two  notes,  the  latter  agreeing  to  pay  enough  in  addition  to 
make  the  purchase  price  $300,  H.,  however,  reserving  the  right  to  re- 
deem.    In  an  action  brought  to  recover  installments  due  and  unpaid 
on  the  contract,  H.,  as  a  witness  for  plaintiff,  testified  that  defendants 
were  to  pay  up  the  contract.     Held,,  that  the  evidence  failed  to  show 
an  express  agreement  on  the  part  of  defendants  to  pa}r  the  balance  due 
plaintiff;  that  the  most  that  could  be  claimed  was  that  defendants 
.agreed  to  make  advances  for  H.,  to  be  repaid  when  he  redeemed  ;  that 
there  was  therefore  no  assumption  of  the  debt,  so  as  to  make  it  the 
•debt  of  defendants,  at  least  no  promise  intended  for  the  benefit  of 
plaintiff;  and  that,  therefore,  plaintiff  was  not  entitled   to  recover. 
Roe  v.  Barker,  82  N.  Y.  431. 

1382.  After  installments  had  become  due,  defendants  requested 
plaintiff  to  give  further  time,  which  he  did  in  consideration  of  an  oral 
promise  to  pay  the  debt.     Held,  that  this  did  not  authorize  the  re- 
versal of  a  judgment  for  defendants,  as  no  such  cause  of  action  was  set 
forth  in  the  complaint,  and  as  the  promise  was  void  under  the  statute 
of  frauds;  and  that,  conceding  it  was  supported  by  a  sufficient  con- 
sideration in  the  agreement  for  forbearance,  it  was  not  thereby  made 
valid.     Eoe  v.  Barker,  82  N.  Y.  431. 


OF   STANDARD   DECISIONS.  195 

1383.  The  law  will  not  presume  a  contract  illegal,  or  against  pub- 
5ic  policy  and  so  void,  when  it  is  capable  of  a  construction  which 
will  make  it  lawful  and  valid.     Ormes  v.  Dauchy,  82  N.  Y.  443. 

1384.  To  excuse  non-performance  of  an  express  condition  in  a 
contract,  it  must  appear  that  performance  could  not,  by  any  means, 
have  been  accomplished.      Wheeler  v.  Conn.  Mut.  L.  Ins.  Co.,  82  N. 
Y.  543. 

1385.  In  the  advertisement  for  proposals  for  constructing  a  sewer 
in  the  city  of  New  York  a  price  was  fixed  to  be  allowed  for  rock  ex- 
cavation, and  the  price  so  fixed  was  included  in  the  contract,  thus  with- 
drawing the  item  from  competition.     Held,  that  this  was  not  a  com- 
pliance with  the  provision  of  the  statute  requiring  the  work  to  be  let 
by  contract,  after  advertisement,  to  the  lowest  bidder ;  and  that  the 
contract   and  an  assessment  for  the  work  was  illegal  and  void.     In  re 
Manhat.  Savings  Institution,  82  N.  Y.  142. 

1386.  A  paper  dated  in  one  of  the  Southern  States  and  promis- 
ing to  pay  with  interest  a  sum  of  money  specified  and  acknowledged  to 
t>e  due  as  soon  as  the  crop  can  be  sold  or  the  money  raised  from  any 
other  source  is  not  either  in  form  or  effect  a  promissory  note.     Nunez 
v.  Dautel,  19  Wall.  U.  S.  560. 

1387.  Where,  in  part  performance  of  an  agreement,  a  party  has 
Advanced  money,  or  done  an  act,  and  then  stops  short  and  refuses  to 
proceed  to  its  conclusion,  the  other  party  being  ready  and  willing  to 
proceed  and  fulfil  all  his  stipulations  according  to  the  contract,  such 
first-named  party  will  not  be  permitted  to  recover  back  what  has  been 
Advanced  or  done.     Hausbrough  v.  Peck,  5  Wall.  U.  S.  497. 

1388.  Where  a  deed  to  A.  though  executed  before  a  mortgage  of 
the  same  property  to  B.,  is  not  delivered  until  after  the  execution  and 
record  of  the  mortgage,  the  mortgage  will  take  precedence  of  it.     Par- 
melee  v.  Simpson,  5  Wall.  U.  S.  81. 

1389.  The  obligation  of  a  contract,  valid  at  the  time  of  making 
by  the  laws  of  the  State,  or  by  judicial  decisions  upon  the  laws,  cannot 
Jbe  impaired  by  any  decision  of  the  courts  of  the  State  subsequently 
made.     Chicago  v.   Sheldon,  9  Wall.   50 ;  also,  the  City  v.  Lamson,  9 
Wall.  U.  S.  478. 

1390.  Where  a  purchaser  of  real  estate  fails  to  comply  with  the 
contract  under  which  he  obtained  possession,  the  vendor  may  treat 
the   contract  as  rescinded,  and  regain  the  possession  by  ejectment. 
Burnett  v.  Caldwell,  9  Wall.  U.  S.  290. 

1391.  Where  some  parts  of  a  contract  are  illegal  while  others  are 
legal,  the  legal  may  be  separated  from  the  illegal,  if  there  be  no  impu- 
tation of  madum  in  re,  and  if  the  good  part  show  a  sufficient  cause  of 
action,  it  is  error  to  sustain  demurrer  to  the  whole.     Gelpcke  v.  City  of 
Dubuque,  1  Wall.  U.  S.  221. 

1392.  When  parties  have  reduced  their  contracts  to  writing,  con- 
versations controlling  or  changing  their  specifications  are,  in  the  absence 
of  proofs  no  more  received  in  a  court  of  equity  than  in  a  court  of  law. 

Willard  v.  Taylor,  9  Wall.  U.  S.  557.  . 

1393.  Where — on  the  sale  of  a  steamboat  whose  owners  had  con- 
tracted various  debts  in  building  and  furnishing  her,  some  of  which 
debts  were  liens  on  the  boat  and  some  not — certain  persons,  friends  of 
the  purchaser,  agreed  to  "  defend  and  have  the  said  vendor,  free  and 


196  MONROE'S  DIGEST 

harmless  of  any  and  all  claims  and  demands  that  may  arise  or  be 
brought  against  said  steamboat,"  held,  that  the  expression  referred  to 
debts  existing  at  the  date  of  the  sale  and  not  to  debts  that  might  be  con- 
tracted after  it ;  and  meant  to  protect  the  owner  from  all  liability  aris- 
ing from  his  part-ownership  of  the  boat,  irrespective  of  the  fact  whether 
the  debts  were  liens  on  the  boat  or  not.  Moran,  et  al.  v.  Prather,  23 
Wall.  U.  S.  492. 

1394.  In  the  matter  of  a'  contract,  a  distinction  sometimes  exist 
between  a  motive  which  may  induce  entering  into  it  and  the  actual  con- 
sideration of  the  contract.  This  subject  illustrated.  Philpot  v. 
Grunm$er,  14  Wall.  U.  S.  570. 


CONYERSION. 

1395.  In  November,  1866,  defendants,  who  were  engaged  in  tow- 
ing boats  upon  the  Hudson  River,  were  employed  by  the  master  of  a 
canal  boat  to  tow  the  boat  from   Troy  to  New  York.     In  Januaryr 
1867,  the  bill  for  towing  not  having  been  paid,  it  was  placed  by  de- 
fendants' direction  in  the  hands  of  a  New   York  law  firm  for  collec- 
tion by  some  proceeding  against  the  boat.     Said  attorneys  proceeded 
under  the  Act  of  1862  (Chap.  482,  Laws  of  1862),  providing  "  for  the 
collection  of  demands  against  ships  and  vessels,"  which  Act  had  not 
then    been  declared   unconstitutional ;    they  caused  the  vessel   to   be 
seized  and  sold  under  the  provisions  of  that  act  by  the  sheriff  of  Kings 
County,  and  a  portion  of  the  proceeds  were  paid  to  defendants.     In  an 
action  brought  by  the  owner  of  the  boat  to  recover  for  its  conversion, 
it  was  conceded  that  said  Act  was  unconstitutional  and  the  proceed- 
ings under  it  void.     Held,  that  defendants  were  liable.     Poucher  v. 
Blanchard,  86  N.  Y.  256. 

1396.  Where  a  promissory  note,  intrusted  by  the  maker  to  another 
to  be  used  for  a  special  purpose,  is  diverted  by  the  latter,  an  action  lies 
against  him  for  the  conversion  thereof.     Hynes  v.  Patterson,  95  N, 
Y.  1. 

1397.  An  attaching  creditor  cannot  defend  an  action,  brought  by 
an  assignee  of  the  debtor,  for  the  conversion  of  a  chose  in  action  at- 
tached, by  showing  fraud  in  the  assignment.     Castle  v.  Lewis,  78  N. 
Y.  131. 

1398.  An  unauthorized  sale  by  a  broker  of  stock  purchased  by  him 
for  a  customer,  although  a   conversion,    does  not  of  itself  constitute 
such  a  fraud  as  was  contemplated  by  the  provisions  of  the  late  Bank- 
rupt Act  (U.  S.  Re.  S.,  §  5117),  which  declares  that  no  debt  created  by 
the  fraud  of  the  bankrupt  shall  be  discharged  by  proceedings  in  bank- 
ruptcy.    Stratford  v.  Jones,  97  N.  Y.  586. 

1399.  Nor  does  the  insolvency  of  the  broker,  at  the  time  of  the 
conversion  conclusively  establish  a  fraudulent  intent.     Ibid. 

1400.  In  an  action  brought  by   the  defendants  herein  against  S., 
plaintiff's  assignor  and  others,  an  attachment  against  the  property  or 
the    defendants  was  granted   upon    affidavits   making   a  prima  facie 
case,  and  upon  a  full  compliance  with  all  the  formal  requirements,  on 
the  ground  that    defendants  were  about   to  assign,   dispose   of  and 


OF  STANDARD   DECISIONS.  197 

secrete  their  property,  with  intent  to  defraud  their  creditors.  The  at- 
tachment was  levied  upon  property  of  S.  The  defendants  in  the  at- 
tachment suit  thereupon  moved  on  affidavits  to  vacate  the  writ ;  the 
motion  was  denied  at  Special  Term,  but  the  General  Term,  on  appeal, 
reversed  the  order  of  Special  Term,  and  granted  the  motion.  Pending 
the  appeal,  most  of  the  attached  property  was  sold  as  perishable,  by 
order  of  the  court.  After  the  vacating  of  the  attachment,  the  proceeds 
of  the  sale  were  paid  over  by  the  sheriff  to  the  plaintiff'  herein,  to  whom 
was  also  delivered  the  property  unsold.  Held,  that  the  taking  of  the 
property  was  not  a  conversion  :  that  the  attachment  having  been  law- 
fully issued,  was  a  complete  justification,  both  to  the  officer  and  the 
party,  and  it  did  not  cease  to  be  a  protection  after  it  was  vacated  for 
^icts  done  under  it ;  also,  that  defendants,  not  having  received  either 
the  property  or  its  value,  were  not  responsible  therefor  to  plaintiff. 
Day  v.  Bach,  87  N.  Y.  56. 


CONVEYANCES. 

1401.  A  deed  recorded  after  fifteen  days  is  notice  to  purchasers, 
mortgagees  and  judgment  creditors  subsequent  to  such  record.     San- 
.born  v.  Adair,  29  N.  J.  338. 

1402.  A  deed  not  recorded  in  fifteen  days  is  void  as  to  a  subse- 
quent deed  for  a  valuable  consideration,  without  notice,  and  cannot  re- 
gain its  priority  by  being  placed  on  record  before  such  subsequent  deed 
recorded.     Ibid. 

1403.  Such  subsequent  deed   cannot    lose   its   priority   over   the 
earlier  deed   by  not  being  put  on  record,  but  is,  in  its  turn,  if  not  re- 
corded in  fifteen  days,  subject  to  be  postponed  to  a  later  deed,  taken 
without  notice  for  a  valuable  consideration.     Ibid. 

1404.  If  a  grantee  in  a  deed  be  a  bona  fide  purchaser  for  a  valu- 
able consideration,  his  or  her  title  is  unassailable,  whatever  ma.y  have 
•been  the  motives  or  intentions  of  the  grantor  in  executing  the  deed. 
It  is  absolutely  essential  that  both  parties  shall  concur  in  the  fraud  to 
invalidate  the  deed.     Fraud  cannot  be  presumed ;  it  must  be  proved  by 
clear  and  satisfactory  evidence.     Herring,  et  al.  v  Wickham  &  Wife, 
4t  al,  29  Grattan,  Va.  628. 

1405.  A  voluntary  conveyance  is  void  as  against  creditors  holding 
debts  previously  contracted.     Russel,  et  al.  v.  Thatcher,  et  al.,  1  Del. 
320. 

1406.  A  voluntary  conveyance,  though  without  a  fraudulent  in- 
tent, is  void,  as  against  creditors,  under  the  statute  of  13  Elizabeth. 
Logan,  et  al.  v.  Brick,  et  al.,  2  Del.  206. 

140*7.  Withholding  a  deed  from  the  records  for  several  years  may, 
as  an  element  in  the  proof  fraud,  be  explained  so  as  to  rebut  any  pre- 
sumption of  fraud  arising  from  it.  Th.ouron  v.  Pearson,  29  N.  J.  487. 

1408.  A  voluntary  conveyance  of  real  estate  made  b}^  a  husband, 
just  before  his  marriage,  to  his  mother,  without  any  valuable  consider- 
ation, and  kept  a  secret  until  years  after  the  marriage,  is  fraudulent 
and  void  as  against  the  wife's  claim  of  dower. 

1409.  Although  a  trustee  may  become  a  purchaser  from  a  cestui 


198  MONROE'S  DIGEST 

que  trust  upon  fair  principles  and  proper  consideration,  yet  where  the 
transaction  has  no  pecuniary  consideration  to  uphold  it,  it  is  liable  to 
the  closest  scrutiny  due  from  courts  in  such  transactions. 

1410.  To  afford  complete  protection  to  the  trustee  who  deals  with 
a  cestui  que  trust,  such  statement  and  information  should  be  given  by 
the  trustee  to  the  cestui  que  trust  as  to  the  extent  and  value  of  his  in- 
terest in  the  estate,  so  that  a  court  may  see  that  the  proposed  dealing 
is  fair,  and  that  the  act  was  entered  upon  with  as  much  knowledge,  on 
the  part  of  the  cestui  que  trust,  as  was  possessed  by  the  trustee  in  re- 
spect to  the  trust  property.     Pomeroy  v.  Pomeroy,  54  Howard,  N.  Y. 

1411.  .  It  seems  the  grantee,  in  a  conveyance  by  deed-poll  contain- 
ing a  mortgage  assumption  clause,  upon  acceptance  of  the  deed,  be- 
comes bound  as  covenanter  to  pay  the  mortgage.  Bowen  v.  Beck,  94  N. 
Y.  86. 

1412.  A  specific  devise  of  real  estate  can  only  be  revoked  by  the 
destruction  of  the  will  or  the  execution  of  another  will  or  codicil,  or 
by  alienation  of  the  estate  during  the  testator's  life.     Burriham  \. 
Comfort,  108  N.  Y.  535. 

1413.  While  a  conveyance  will  be  so  construed  as  to  carry  into  ef- 
fect the  intent  of  the  parties,  so  far  as  it  can  be  collected  from  the 
whole  instrument,  yet  whatever  the  intention  may  be,  nothing   will 
pass  by  a  deed  except  what  is  described  therein.     Thayer  v.  Fintonr 
108  N.  Y.  394. 

1414.  Conveyance — voluntary  is  void   if  it  tends  to  hinder  and  de- 
lay creditors,  although  it  may  not  otherwise  injure  them.     A  convey- 
ance being  heM  fraudulent  and  void  as  against  creditors,  certain  mort- 
gages of  the  property  conveyed,  taken  by  the  vendor  by  way  of  con- 
sideration, were  nevertheless  held  good  in  the  hands  of  an  assignee  for 
value  without  notice.     Logan,  et  at.  v.  Brick,  et  al.,  2  Del.  206. 

1415.  He  who  buys  any  part  of  the  avails  of  a  scheme  to  defraud 
creditors,  in  order  to  keep  what  he  gets,  must  not  only  pay  for  it,  but 
he  must  be  innocent  of  any  purpose  to  further  the  fraud.     De  Witt  v. 

Van  Sickle,  29  N.  J.  209. 

1416.  Property  conveyed  in  fraud  of  creditors  will  be  reclaimed  for 
the  benefit  of  creditors,  no  matter  who  may  happen  to  hold  it,  if  rec- 
lamation can  be  effected  without  injustice  to  innocent  third  persons. 
De  Witt  v.  Van  Sickle,  29  N.  J.  209. 

1417.  If  the  grantee  of  property  conveyed  in  fraud  of  creditors 
dispose  of  it  before  proceedings  are  instituted  to  reach  it,  he  will  be 
held  answerable  for  its  value.     Post  v.  Stiger,  29  N.  J.  554. 

1418.  Conveyances  by  a  solvent  father  to  his  two  sons,  in  consid- 
eration of  services  rendered  by  them  for  man}r  years,  made  openly,  the 
deeds  being  recorded  soon  afterwards,  and  the  sons  remaining  in  con- 
tinuous possession  thereafter,  are  good  against  creditors  of  the  father. 
Horton  v.  Castner,  29  N.  J.  536. 

1419.  A  conveyance  of  the  fee  to  a  mortgagee  will  not  merge  his 
mortgage,  where  such  intention  on    his   part   does  not  exist,  and  no- 
detriment  to  other  encumbrancers  shown.     Andrus  v.  Vreeland,  29  N. 
J.  394. 

1420.  The  registry  of  a  conveyance  of  an  equitable  title  is  notice 
to  a  subsequent  purchaser  of  the  same  interest  or  title  from  the  same 
grantor,  but  is  not  notice  to  a  purchaser  of  the  legal  title  from  th& 


OP   STANDARD   DECISIONS.  199 

person  who  appears  by  the  record  to  be  the  real  owner.     Tarbell  v. 
West,  86  N.  Y.  280. 

1421.  When  land  is  by  one  deed  conveyed  to  two  or  more  persons, 
who   contributed  to  the  purchase  money  in   unequal  amounts,  their 
share  in  the  property  will,  in  the  absence  of  an  agreement  to  the  con- 
trary, be  in  proportion  to  their  respective  contributions.     Shroser  v. 
Isaacs,  28  N.  J.  Eq.  320. 

1422.  Where  the  grantor  in  a  deed  covenants  that  he  was  well 
seized,  etc.,  and  had  good  right  to  convey,  etc.,  and  then  added  that  he 
"  would  warrant  and  defend  the  grantee,  his  heirs  and  assigns,  against 
all  and  every  person  lawfully  claiming,  or  to  claim  the  whole,  or  any 
part  of  the  premises,  except  against  the  United  States."     Held,  that 
both  covenants  must  be  taken  and  construed  together,  and  that  the  lat- 
ter restricted  and  qualified  the  first.     Dunn  v.  Dunn,  3  Colo.  510. 

1423.  Insolvent   debtor   seeking    to   prefer   certain   creditors   by 
mortgage,  no  ground  for  equitable  relief.     Heidingsf elder,  et  al.  v. 
Slade  &  Etheridge,  et  al,  60  Ga.  396. 

1424.  From  the  mere  fact  that  upon  the  sale  of  a  piece  of  property 
belonging  to  the  wife  the  husband  received  the  price,  it  does  not  neces- 
sarily follow  that  a  debt  of  the  latter  to  the  former  was  intended  to  be 
or  was  created.     Hunt  v.  Spencer,  20  Kansas,  126. 

1425.  A  voluntary  convej'ance  can  be  sustained,  as  against  exist- 
ing creditors,  only  when  under  all  the  circumstances  of  the  case  the 
property  retained  by  the  grantor   furnishes  reasonable  and  adequate 
provisions  for  the  discharge  of  his  debts.     Ibid. 

1426.  A  contract  for  the  conveyance  of  real  estate,  not  in  writing, 
is  void  by  the  statute  of  frauds.     When  a  party  to  such  contract  has 
complied  with  its  conditions,  and  made  all  the  payments  required  by 
its  terms,  he  is  entitled  to  recover  back  such  payments,  in  case  the 
other  party  refuses  to  perform  on  his  part.     Nor  will  it  defeat  his  right 
of  recovery  that  he  is  in  possession  of  the  premises  agreed  to  be  con- 
veyed.    Jettison  v.  Jordan,  68  Me.  373. 

1421.  Sale  of  all  his  landed  estate  by  husband  to  wife,  ifbonafide, 
coveys  title ;  aliter,  if  to  hinder  or  defraud  creditors,  though  subse- 
quently perfected  by  formal  conveyance.  Thompson  v.  Feagin,  60 
Ga.  82. 

1428.  A  party  loses  no  right  by  a  mere  change  in  the  form  of  his 
securities,  and  the  holder  of  a  new  note,  given  in  exchange  for  an  old 
one,  may  attack  a  conveyance  which  would  be  fraudulent  as  to  the  old 
one.      Thomson  v.  Herter,  55  Miss.  656. 

1429.  A  voluntary  conveyance  from  father  to  son,  made  by  the 
grantor,  with  an  intent  to  defraud  his  subsequent  creditors,  is  void  as 
to  such  creditors,  with  either  allegation  or  proof  that  the  grantee  par- 
ticipated in  that  intent  when   he  received  or  accepted  the  deed.     In 
such  case  the  intent  of  the  grantor  alone  determines  the  validity  of 
the  conveyance.     Langton  v.  Harder,  68  Me.  208. 


200  MONROE'S  DIGEST 


CORPORATIONS. 

1430.  If  a  corporation,  in  excess  of  its  powers  conferred  by  its 
charter,  receives  a  sum  of  money  on  condition  that  it  will  return  it,  if 
an  additional  sum  is  not  raised  within  a  given  time,  and  the  condition 
is  broken,  an  action  may  be  maintained  against  the  corporation  on  an 
implied  promise  to  return  the  money,  and  a  demand  for  its  return  may 
be  submitted  to  arbitration.     Mormlle  v.  American  Tract  Society,  123 
Mass.  129. 

1431.  The  superintendent  of  a  mining  company  has  no  authority 
by  virtue  of  his  office  to  borrow  money  on  the  credit  of  the  corpora- 
tion.    The  president  of  the  corporation  has  no  authority,  as  such,  to 
undertake,  in  the  corporate  name,  for  the  repa3rment  of  such  an  un- 
authorized loan.      Union  Gold  Mining  Co.  v.  Rocky  Mt.  Nat.  Bank,  2 
Colorado,  565. 

1432.  One  for  whom  another  has,  without  authority,  assumed  to 
act,  must  not  only  disavow  and  repudiate  what  has  been  done  but  must 
also  give  notice  of  such  repudiation  to  those  to  be  affected  thereby,  if 
he  would  avoid  the  inference  of  assent,  which  the  jury  are  otherwise 
at  liberty  to  indulge.     Ibid. 

1433.  Where  goods  are  sold,  and  credit  given  to  a  corporation,  an 
officer  and  stockholder  cannot  be  held  personally  liable  for  the  debts 
thus   created,  upon  a  promise  to  pay  or  see  them  paid,  unless  such 
promise  be  in  writing.     Searight  v.  Payne,  2  Tenn.  Eq.  175. 

1434.  If  a  certificate  of  shares  in  the  capital  stock  of  a  corpora- 
tion is  taken  without  the  owner's  knowledge,  and,  together  with  forged 
power  of  attorney,  is  delivered  to  an  auctioneer  for  sale,  to  whom  the 
corporation  issues  a  new  certificate  in  the  name  of  the  auctioneer,  who 
delivers  it  to  an  innocent  purchaser  for  value,  to  whom,  in  turn,  on  its 
presentation,  the  corporation  issues  a  new  certificate,  the  owner  is  en- 
titled, on  a  bill  in  equity  against  the  corporation  and  purchaser,  to  a 
decree  to  compel  the  corporation  to  issue  to  him  a  certificate  for  his 
shares   and  to  pay  him  the  dividends  thereon,  but  not  to  a  decree 
against  the  purchaser ;  and,  upon  such  bill,  the  court  cannot  decide, 
unless  by  consent,  whether  the  corporation  is  liable  to  the  purchaser. 
Pratt  v.  Taunton  Copper  Co.,  123  Mass.  110. 

1435.  An  officer  and  stockholder  of  a  corporation  who  states  to  a 
creditor  that  the  corporation  is,  in  his  opinion,  solvent,  does  not  thereby 
make  himself  liable  to  the  creditors,  if  the  statement  was  made  in  good 
faith,  although  the  corporation  was,  in  fact,  at  that  time  insolvent. 
Searight  v.  Payne,  2  Tenn.  Eq.  175. 

1436.  Corporation  bonds,  payable  to  bearer  or  order,  and  the  cou- 
pons annexed  thereto,  are  now  recognized  as  possessing  all  the  ordinary 
properties    of    negotiable    instruments.      Such     bonds    or    coupons, 
although  stolen,  are  collectible  in  the  hands  of  a  bona  fide  holder,  who 
took  them  for  value,  in  the  usual  course  of  business,  before  maturity 
and  without  notice.     Spooner  v.  Holmes,  102  Mass.  503  ;  Evertson  v. 
Nat.  Bank  of  Newport,  6  N.  J.  14 ;  Carpenter  v«  Rommel,  5  Phila. 
Pa.  34. 

1437.  Where,  under  the  act  of  1869  (Chap.  907,  Laws  of  1869), 
authorizing  municipal  corporations  to  aid  in  the  construction  of  rail- 


OF   STANDARD   DECISIONS.  201 

roads,  and  prior  to  the  passage  of  the  amendatory  act  of  1871  (Chap. 
925,  Laws  of  1871)  proceedings  had  been  regularly  taken  to  bond  a 
town  in  aid  of  a  railroad,  and  the  county  judge  had  made  his  adjudica- 
tion and  record  and  had  appointed  commissioners,  held,  that  the  pro- 
ceedings were  not  invalidated  by  said  amendatory  act,  and  that  the 
commissioners  had  authority,  after  its  passage,  to  subscribe  for  stock 
and  issue  bonds  under  and  in  pursuance  of  the  judgment  of  the  county 
judge.  Syracuse  Savings  Bank  v.  T'n  Seneca  Falls,  86  N.  Y.  317. 

1438.  The  words,  "  knowing  it  to  be  false  "  in  the  provision  of  the 
Manufacturing  Act  (§  15,  chap.  40,  Laws  of  1848),  making  officers  of 
a  corporation  organized  under  it  liable  for  signing  a  false  report,  mean 
&  willful  misrepresentation,  with  actual  knowledge  of  its  falsity,  not 
merely  such  constructive  knowledge  as  can  be  imputed  from  the  pre- 
sumption that  the  officer  signing  knew  the  law  and  comprehended  the 
precise  import  of  the  language  used,  when  construed  with  reference  to 
the  statute.      Pier  v.  Hanmore,  86  N.  Y.  95. 

1439.  A  railroad  corporation  seeking  to  take  property  in  invitum 
for  the  purpose  of  its  road,  must  be  able  to  show,  first  a  legislative 
warrant,  and,  second,  if  the  right  is  challenged,  that  the  particular 
scheme  in  which  it  is  engaged  is  a  railroad  enterprise  within  the  true 
meaning  of  that  term,  or  that  the  business  it  is  organized  to  carry  on 
is   public,  and  that  the  taking  of  private  property  for  its  purposes  is  a 
taking  for  public  use.     In  re  N.  F.  &  W.  R.  Co.,  108  N.  Y.  375. 

1440.  A  corporation,  in  the  absence  of  statutory  restrictions,  has 
the  right  to  prefer  one  creditor  to  another  in  the  distribution  of  its 
property.     Coats,  Assignee,  Etc.  v.  Donnell,  et  al.,  94  N.  Y.  168. 

144L  When  under  a  charter  provision,  a  stockholder  is  liable  for 
the  debts  of  the  corporation  to  the  amount  of  his  stock,  this  liability 
arises  out  of  contract ;  and  though  the  debt  may  accrue  after  the  stock- 
holder's death,  it  is  a  claim  against  his  estate,  and  an  action  lies  against 
his  executor.  Manville  v.  Edgar,  8  Mo.  App.  324. 

1442.  The  president  of  a  business  corporation  has  no  power,  as 
such   to  constitute  a  general  business  manager  without  the  consent  of 
the   directors.      Vogel   v.   St.  Louis   Museum,   Opera,  and   Fine  Art 

Gallery,  8  Mo.  App.  587. 

1443.  The  franchise  to  be  a  corporation  is  not  a  subject  of  sale  and 
transfer,  unless  made  so  by  a  statute,  which  provides  a  mode  for  exer- 
cising it.     Memphis  &  Little  Eock  By.  v.  Railroad,  Corn's,  112  U.  S. 
309;  also,  Morgan  v.  Louisiana,  93  U.  S.  217  ;  and  Wilson  v.  Gaines, 
103  U.  S.  417. 

1444.  An  innocent  purchaser  of  stock,  taken  in  good  faith  as  paid 
up,  in  the  absence  of  anything  to  put  him  upon  inquiry,  and  where  the 
•books  of  the  corporation  would  give  no  notice  that  the  stock  was  not 
paid  up,  is  not  liable  to  the  creditors  of  the  corporation  for  the  amount 
unpaid.     Keystone  Bridge  Co.  v.  McCluney,  8  Mo.  App.  496. 

1445.  A  remedy  given  by  the  statutes  of  another  State  to  creditors 
of  a  corporation  against  its  stockholders  is  not  available  here.     Chris- 
Jensen  v.  Eno,  106  N.  Y.  97. 

1446.  Corporation  issuing  bills  as  currency  without  authority  and 
contrary  to  law  is  not  liable  to  the  holder  for  money  had  and  received, 
though  bills  are  void,  especially  where  the  receiving  as  well  as  issuing 
is  contrary  to  law.      Thomas  v.  Richmond,  12  Wall.  U.  S.  349. 


202  MONROE'S  DIGEST 

1447.  Where  the  issue  of  bills  as  currency,  except  by  banks,  is 
prohibited,  city  has  no  power,  without  express  authority,  to  issue  them. 
Ibid. 

1448.  In  the  absence  of  proof  showing  a  want  of  authority  on  the 
part  of  a  corporation  in  making  a  contract  or  of  a  violation  of  its 
charter  is  ultra  vires  will  not  be  upheld;  every  presumption  is  to  the 
contrary.     Reder  Life  Raft  Go.  v.  Roach,  97  N.  Y.  378. 

1449.  A  corporation  has  no  implied  authority  to  increase  or  dimin- 
ish its  capital  stock,  and  can  only  do  so  when,  and  as  authorized  by 
statute.     Sutherland  v.  Olcott,  95  N.  Y.  93. 

1450.  Power  to  issue  bonds  carries  with  it  power  to  cancel  those 
already  issued,  but  not  put  in  circulation,  and  to  issue  new  ones,  and 
to  make  them  payable  beyond  the  limits  of  the  county  or  state  where 
they  are  issued.     Lynde  v.  The  County,  16  Wall.  U.  S.  6. 

1451.  If  bonds  issued  by  a  city  having  power  to  borrow  money  and 
provide  for  payment  of  her  debts,  under  an  ordinance  authorizing 
them  for  that  purpose,  are  defective  and  void,  city  is  liable  as  a  bor- 
rower for  the  money  received.     Louisiana  v.  Wood,  102  U.  S.  294. 

1452.  Where  a  stockholder  of  a  manufacturing  corporation,  whose 
stock  has  not  been  fully  paid  in,  in  good  faith  makes  an  absolute  and 
valid  transfer  of  his  stock  to  another,  he  is  not  liable  for  calls  made 
after  the  transfer.     Billings  v.  Robinson,  94  N.  Y.  415. 

1453.  The  unissued  shares  of  stock  of  a  corporation  are  not  assets 
in  its  hands,  and  in  the  absence  of  any  statutory  provision,  or  provi- 
sion of  its  charter,  one  to  whom  shares  have  been  transferred  by  it 
gratuitously  does  not,  by  accepting  them,  become  a  debtor  to  the  com- 
pany or  make  himself  liable  to  pay  the  nominal  face  of  the  shares  as 
upon  a  subscription  for  the  stock  or  a  contract,  and  an  action  is  not 
maintainable  against  him  by  a  creditor  of  the  corporation  to  compel 
him  to  pay  for  such  shares.     Christensen  v.  Eno,  106  N.  Y.  97. 

1454.  So,  also,  where  bonds  of  a  corporation  have  been  issued  by 
it  gratuitously  to  a  stockholder,  but  no  portion  of  its  property  or 
assets    has  been  applied  in  payment  thereof,  the  stockholder  is    not- 
liable  to  account  to  creditors  for  the  proceeds  of  the  sale  of  said  bonds- 
by  him.     Christensen  v.  Eno,  106  N.  Y.  97. 

1455.  Directors  of  a  corporation  have  no  power  to  increase  the 
capital  stock  of  a  corporation  when  the  charter  authorizes  it  to  be  in- 
creased "  at  the  pleasure  of  the  corporation."     Railway  Company  v. 
Allenton,  18  Wall.  U.  S.  233. 

1456.  The  fact  that  the  charter  declares  that  "  all  the  'corporate- 
powers  of  the  said  corporation  shall  be  vested  in  and  exercised  by  a 
board  "  of  directors  does  not  alter  the  case.     Ibid. 

1457.  Although  a  subscription  for  stock  of  a  railroad  company  be 
duly  authorized  by  the  requisite  number  of  the  qualified  voters  of  a 
township,  if  the  company,  before  the  subscription  be  actually  mader 
becomes  consolidated  with  another,  thereby  forming  a  third,  the  county 
court  in  Missouri  is  not  empowered  to  subscribe,  on  behalf  of  the  town- 
ship, for  stock  of  the  new  company  and  issue  bonds  in  payment  there- 
for.    Harshman  v.  Bates  County,  92  U.  S.  569. 

1458.  The  capital  stock,  franchise,  and  all  the  real  and  personal 
property  of  a  corporation,  are  justly  liable  to  taxation;  and  a  rule 
which  ascertains  the  value  of  all  this,  by  ascertaining  the  cash  value 


OF   STANDARD  DECISIONS.  20& 

of  the  funded  debt  and  of  the  shares  of  the  capital  stock  as  the  basis 
of  assessment,  is  probably  as  fair  as  any  other.  State  Railroad  Tax 
Cases,  92  U.  S.  575. 

1459.  Deducting  from  this  the  assessed  value  of  all  the  tangible 
real  and  person  property,  which  is  also  taxed,  leaves  the  real  value  of 
the  capital  stock  and  franchise  subject  to  taxation  as  justly  as  any 
other  mode,  all  modes  being  more  or  less  imperfect.     Ibid. 

1460.  Under  the  laws  of  Iowa,  a  railroad  company,  having  power 
to  issue  its  own  bonds  in  order  to  make  its  road,  may  guarantee  the 
bonds  of  cities  and  counties  which  have  been  lawfully  issued,  and  are 
used  as  the  means  of  accomplishing  the  same  end.     Railroad  Com- 
pany v.  Howard,  7  Wall.  U.  S.  392. 

1461.  The  doctrine  announced  in    Upton  v.  Fribilock,  supra,  that 
the  original  holders  of  the  stock  of  a  corporation  are  liable  for  the  un- 
paid balance  at  the  suit  of  its  assignee  in  bankruptcy,  without  any 
express  promise  to  pay  reaffirmed.     Webster  v.  Upton,  Assignee,  91. 

1462.  The  transfer  of  stock  is   liable  for  calls  made  after  he  has 
been  accepted  by  the  company  as  a  stockholder,  and  his  name  regis- 
tered on  the  stock  books  as  a  corporation  ;  and,  being  thus  liable,  there 
is  an  implied  promise  that  he  will  pay  calls  made  upon  such  stock 
while  he  continues  its  owner.     Ibid. 

1463.  A  purchase  of  stock  is  of  itself  authority  to  the  vendor  to 
make  a  legal  transfer  thereof  to  the  vendee  on  the  books  of  the  com- 
pany.    Ibid. 

1464.  Stockholders  in  a  corporation  need  not  be  individually  made- 
parties  in  a  creditor's  suit  where  their  interest  is  fully  represented  both 
by  the  railroad  company  and  by  a  committee  chosen  and  appointed  by 
them.      Railroad  Co.  v.  Howard,  7  Wall.  U.  S.  392. 

1465.  Members  of  a  corporation  to  whom  a  certificate  of  organiza- 
tion as  a  corporation  has  been  issued  by  the  secretary  of  the  common- 
wealth in  accordance  with  the  statute  of  1870,  c.  224,  are  not  liable  as 
partners,  by  reason  of  having  transacted  business  before  the  whole  of 
the  capital  stock  has  been   paid  in,  in  violation  of  section  32  of  that 
statute.     First  Nat.  Bank  of  Salem  v.  Almy,  117  Mass.  476. 

1466.  A  city  council  has  no  authority  to  grant  to  any  person  a  mo- 
nopoly, even  where  no  express   prohibition  is  found  in  the  charter  or 
other  act  of  the  legislator.     Davenport  v.  Kleinschmidt,  6  Mont.  502  ; 
Grampton  v.  Zabriskie,  101  IT.  S.  601,  604,  609 ;  Rice  v.  Smith,  9  Iowa, 
576  ;    Williams,  et  al.  v.  Pungy,  et  al.,  25  Iowa,  436 ;  Leudt  v.  Town  of 
Sharon,  34  Conn.  108;  People  v.  Mayor,  32  Bastour,  N.  Y.  35;  Chris- 
topher v.  Mayor,  13  Bashour,  N.  Y.  567  ;    Mayor  v.  Gill,  31  Md.  375 ; 
Smith  v.  Appleton,  19  Wis.  493. 

1467.  A  subscriber  for  certain  shares  of  a  corporation,  by  accept- 
ing the  same  and  paying  an  assessment  thereon,  estops  himself  from 
denying  the  existence  and  validity  of  the  contract  of  subscription. 
Inter  Mountain  Pub.  Co.  v.  Jock,  5  Mont.  568 ;  also,  Philips'  Academy 
v.  Davis,  11  Mass.  113. 

1468.  An  incorporated  company  in  England  had  received  an  appli- 
cation from  one  Harris  for  shares  of  its  stock  on  March  5th.     On  the 
16th  the  company  sent  him  notice  that  the  shares  had  been  allotted  to 
him.     The  letter  containing  this  notice  was  received  by  him  on  the 
17th.     But  on  the  16th,  he  had  posted  a  letter  withdrawing  his  appli- 


204  MONROE'S  DIGEST 

cation  for  shares.  Upon  appeal,  it  was  held  that  the  contract  was  re- 
garded as  complete  as  soon  as  the  company's  letter,  giving  notice  of 
the  allotment,  was  committed  to  the  post,  addressed,  as  Harris  had  re- 
quested. Harris'  Case,  7  L.  R.  Ch.  587. 

1469.  This  principal  of  law  has  been  affirmed  in  Pennsj'lvania,  in 
Hamilton  v.  Lycoming  Mut.  Ins.  Co.  5  Barr.  339 ;  in  Kentucky,  Chiles 
Nelson,  7  Dana,  281  ;    in  Georgia,  Levy  v.  Cohen,  4  Ga.  1  ;  also,  Bryant 
v.  Booze,  55  Ga.  438 ;    in  New  Jersey,  Hallock  v.    Com.  Ins.  Co.  2 
Butcher  ;    Wright  v.  Bigg,  21  E.  L.  and  E.  591  ;  Boston  and  Maine  It. 
E.  v.  Bartlett,  3  Mass.  Cush.  224. 

1470.  Directors  of  a  company  are  not  to  be  held  personally  liable 
to  find  cash  for  checks  drawn  by  them  as  officers  of  their  company 
upon  the  company's  bank,  and  which   the  bank  may  choose  to  honor 
when   the   company  has  no  funds  at   the  bank.       Beattie  v.   Ebury, 
<Lord),  44  L.  J.  Chanc.  20;  7  L.  R.  H.  L.  Cas.  102  English. 

1471.  All  persons  dealing  with  a  company  are  bound  to  take  notice 
of  its  external  position,  as  evidenced  by  its  articles  of  association  and 
partnership  deed ;  but  they  are  not  bound  to  inquire  into  its  internal 
management,  provided  that   their    transactions  with   it   are   such   as 
might  legally  take  place  and  be  consummated  under  the  articles  of  asso- 
ciation.    Mahoney  v.  East  Holyford  Mining  Company,  33  L.  T.  N.  S. 
383  ;  9  Ir.  R.  C.  L.  306  H.  L.  English. 

1472.  Some  of  the  directors  of  a  banking  company,  whose  duty  it 
was,  as  directors,  to  watch  over  and  regulate  the  completion  of  a  con- 
tract entered  into  by  S.,  to  take  up  a  large  number  of  shares  in  the 
bank  at  his  request,  and  before  he  had  paid  for,  and  became  the  owner 
of  the  shares,  entered  into  personal  contracts  with  him  to  take  some  of  the 
shares  off  his  hands.     They  did  so,  and  realized  profits  by  the  sale  of 
the  shares,  and  also  by  the  sale  of  bonus  chares  issued  in  respect  of  the 
shares  so  taken  by  them  from  S.    Held,  that  they  must  account  for  all 
fiuch  profits  to  the  bank.     Parker  v.  McKenna,  10  L.  R.  Ch.  96 ;  23 
W.  R.  271  English. 

1473.  When  a  corporation  has  power  under  any  circumstances  to 
issue  negotiable  securities,  the  bona  fide  holder  has  a  right  to  presume 
that  they  were  issued  under  the  circumstances  which  give  the  requisite 
authority,  and  they  are  no  more  liable  to  be  impeached  in  the  hands  of 
such  a  holder  for  any  infirmity  than  any  other  commercial'  paper. 
City  of  Lexington  v.  Butler,  14  Wall.  F.  S.  282. 

1474.  A  creditor's  bill  may  be  maintained  against  the  directors  of 
an  insolvent  corporation  for  mismanagement  of  its   affairs.      Penn. 
Bank  to  use  v.  Hopkins,  et  al.,  Ill  Penn.  328. 

1475.  Where  an  instrument  is  incomplete,  as  if  any  essential  part 
is  in  blank,  and  is  afterwards  filled  up  by  the  thief,  or  holder  through 
the  thief,  no  recovery  can  be  had.     The  place  of  payment  was  left  in 
blank,  and  before  it  was  filled  up  by  the  president,  the  bonds  were 
stolen.     Held,  that  a  bona  fide  holder  could  not,  by  inserting  the  name 
-of  a  place  in  the  blank,  recover.     Maas  v.  Missouri  JR.  R.  Co.,  11  Hun. 
N.  Y.  8;  also,  Jackson  v.  Vicksburg  Co.,  2  Woods,  141.     The  thief's 
insertion  of  the  name  of  a  payee  in  the  blank  left  for  that  purpose  is 
not  such  an  alteration  as  will  avoid  the  bond.     For  the  fact  of  the 
bond  not  being  payable  to  a  particular  person  does  not  render  it  non- 
negotiable.     Same  rule  applies  to  a  coupon.     Dutchess  Co.  Ins.  Co.  v. 


OF  STANDARD   DECISIONS.  205 

Hachfield,  1   Hun.  N.  Y.   675  ;    Smith  v.  County,  54  Mo.  58  ;  Boyd  v. 
Kennedy,  9  Vt.  1846. 

1476.  The  status  of  a  corporation  doing  business  in  a  State  other 
than  that  in  which  it  was  incorporated  was  clearly  defined  by  the  Su- 
preme Court  of  the  United  States  in  the  case  of  the  Bank  of  Augusta 
v.  Earle,  13  Peters,  538.     Held,  "  That  it  exists  only  in  contemplation 
of  law  and  by  force  of  the  law,  and  when  that  law  ceases  to  operate,, 
and  is  no  longer  obligatory,  the  corporation  can  have  no  existence.    It 
must  dwell  in  the  place  of  its  creator,  and  cannot  emigrate  to  another 
sovereignty." 

1477.  An  action  for  injuries  caused  by  the  fraudulent  acts,  or  for 
misapplication  or  waste  of  corporate  funds,  by  an  officer  of  a  corpora- 
tion, must  be  brought  in  the  name  of  the  corporation,  unless  such  cor- 
poration or  its  officers  refuse  to  bring  such  action.     In  that  contingency,, 
and  then  only,  can  a  stockholder  bring  an  action  for  the  benefit  of  him- 
self and  others  similarly  situated,  and  in  such  case  the  corporation 
must  be  a  party  defendant.     Greaves  v.  Gouge,  54  Howard,  N.  Y.  272. 

1478.  The  charter  of  a  corporation  provides  that  no  "  stockholder 
in  said  corporation  shall  have  the  right  to  transfer  his  shares  therein,, 
•without  first  giving  ten  days'  notice  in  writing  of  such  intention,  and 
ten  days'  refusal  thereof  to   said  corporation,  at  the  lowest  price  at 
which  he  will  sell  to  any  other  person,  and  if  in  such  case  said  corpo~ 
ration  elect  to  purchase  said  shares  at  said  lowest  price,  such  stock- 
holder shall,  on  the  price  being  offered  to  him,  convey  said  shares  to- 
said  corporation."     A  stockholder  offered  to  the  corporation  a  certain 
number  of  shares  at  a  gross  price,  and  subsequently  sold  to  a  third 
party  a  smaller  number  of  shares   at  a  given  price  per  share.     Held, 
that  the  offer  to  the  corporation  did  not  comply  with  provisions  of  the 
charter,  and  that  the  corporation  could  not  be  compelled  to  allow  the 
transfer  of  the  stock  sold  upon  its  books.     Sweetland  v.  Quidnick  Co.r 
11  R.  I.  328. 

1479.  In  case  a  corporation  on  request  refuses  or  neglects  to  bring: 
suit  against  a  defaulting  officer,  such  suit  may  be  brought  by  a  stock- 
holder for  himself  and  his  co-stockholders,  making  the  corporation  a 
party  respondent.     Hazard  v.  Durant,  11  R.  I.  195. 

1480.  A  corporation  cannot  gratuitously  condone  or  release  the 
fraud  of  a  defaulting  officer,  unless  by  a  unanimous  vote  of  its  stock- 
holders.    Trenton  Mutual  Life   Insurance  Co,  v.  Johnston,  24  N.  J.; 
also,  98  Mass.  381  ;  approved,  Clark  v.  Allen,  11  R.  I.  205. 

1481.  Where  the  charter  does  not  require  the  payment  of  a  certain 
amount  at  the  time  of  subscribing  for  stock,  but  the  agreement  of  sub- 
scription  does,  the  failure  to  make  such  payment  does  not  vitiate  the 
subscription.     Water    Valley  Manufacturing  Co.  v.  Seaman,  53  Miss. 
655. 

1482.  The  president  of  a  bank  may  contract,  on  sufficient  consid- 
eration, with  the  defendant  in  a  judgment  in  favor  of  the  bank,  to  enter 
a  remittitur  of  the  judgment.     Case  v.  Hawkins,  53  Miss.  702. 

1483.  A  bank  which  issues   bills  for  circulation  as  money  is  a 
public  corporation  ;  but  a  bank,  which  beyond  a  power  to  contract  in 
its  corporate  name,  has  no  power  beyond  those  which   every  other 
person  possesses,  must  be  deemed  a  private  corporation.     Attorney- 
General  v.  Simonton,  78  N.  C.  57. 


206  MONROE'S  DIGEST 

1484.  Coupons   pass   from  hand   to  hand  by  mere  delivery.     A 
transfer  of  possession  is  presumptively  a  transfer  of  title,  but  does  not 
impart  a  guaranty  of  payment.     Ketchum  v.  Duncan,  96  U.  S.  659. 

1485.  The  personal  liability  of  the  officers  and  stockholders  of  a 
corporation  for  a  debt  contracted  by  the  corporation  is  inconsistent 
with  the  idea  of  a  body  corporate  at  common  law,  and  can  arise  only 
out  of  some  statutory  provision.     Salt   Lake  City  Nat.  Sank  v.  Hen- 
•drickson,  40  N.  J.  Law  Reports,  52. 

1486.  A  creditor  of  the  Eastern  Railway  Co.  held  its  note,  and, 
as  collateral  security  for  the  same,  three  other  notes  of  the  corporation, 
with   coupons  attached,  of  a  kind  regularly  quoted  in  the  market,  is 
entitled,  under  the  statutes  of  1876,  ch.  286,  to  prove  only  the  amount 
of  the  original  note  against  the  company.      Third  Nat.  Bank  v.  East- 
ern Railroad  Co.,  122  Mass.  240. 

1487.  The  defendants  were  an  incorporated  company,  the  capital 
of  which  was  $30,000,  in  100  shares  of  $300  each,  90  of  which  had  been 
subscribed   for,  and  paid  up  in  full  by  duly  made  calls  thereon.     Sub- 
sequently the  defendants  emphtyed  the  plaintiff  to  take  charge  of  their 
business,  who  was  appointed  president,  at  a  salary   of  $1,200.     He 
subscribed   for  seven  shares  of  the  unallotted  stock,  debited  himself 
•with   the  amount  thereof,  $2,100,  in  the  company's  books,  and  after- 
wards paid  it.     Afterwards,  desiring  to  obtain  control  of  the  company, 
he   arranged  with  four  of  the  stockholders  for  the  transfer  to  him  of 
their  stock,  but  one  of  them,  M.,  to  enable  him  to  remain  as  a  direc- 
tor, was  to,  and  did  subscribe  for  the  three  remaining  shares  unallotted. 
Subsequently  the  plaintiff  wished  to  withdraw  from  this  arrangement, 
and  the  parties  agreed  to  cancel  it ;  but  M.  was  to  be  relieved  of  the 
three  shares,  and  M.'s  name  was  accordingly  erased,  and  the  plaintiffs 
inserted,  as   subscriber  for  three  shares,  the  substitution  being  made 
•either  by  plaintiff  himself,  or  by  the  bookkeeper  by  his  direction.     It 
was  also  arranged    between  the    plaintiff   and    the   other    directors 
that  this  stock  should  be  entered  in  the  stock-book  as  paid  up  in  full, 
but  the  plaintiff  was  to  be  debited  with  the  $900,  to  be  paid  out  of  his 
•salary  as  president.     Accordingly    the    plaintiff,  with  his  knowledge 
and  assent,  was  so  debited,  and  from  time  to  time,  as  his  salary  became 
payable,  it   was  set  off  against  it,  and  a  balance  afterwards  struck  in 
the  books  on  this  basis.     There  was  no  by-law  regulating  calls  or  trans- 
fers of  stock,  and  no  calls  made  on  the  plaintiff  for  either  amounts  sub- 
scribed by  him,  and  no  transfer  from  M.  to  plaintiff,  except  in  the 
manner  stated.     Held,  that  no  transfer  was  necessary,  as  the  plain- 
tiff's subscription  must  be  held  as  an  original  one,  nor  were  any  calls 
required,  for   the  plaintiff  by  his  conduct  had  impliedly  agreed  that 
none  need  be  made,  and  both  he  and  the  company  were  estopped  from 
denying   his  ownership  of  the  shares.     The  plaintiff  having  sued  de- 
fendant for  his  salary ;  Held,  that  defendants  were  entitled  to  set  off 
the  amount  due  on  his  stock.     Held,  also,  that  they  were  entitled  to 
have  judgment   in  their   favor  for  the  excess  of  the  set-off  over  the 
plaintiffs   claim,  and  that  for  such  purpose  no  special  prayer  or  con- 
clusion in  their  plea  of  set-off  was  necessary.     Smart  v.  Bowmanmlle 
Machine  and  Implement  Co.,  25  Upper  Canada  Com.  Plea.  Repts.  503. 

1488.  The  stockholders  of  a  corporation  have  no  right  to  appro- 
priate any  part  of  its  assets  to  pay  salaries  due  them  as  officers  of  the 


OP   STANDARD   DECISIONS.  20T 

company,  or  due  them  on  any  other  account,  until  all  creditors,  who 
are  not  stockholders,  have  been  paid.  Gochran  v.  Ocean  Dry  Dock 
Co.,  30  La.  1365. 

1489.  No  loss  suffered  by  a  stockholder,  in  consequence  of  a  call 
authorized  by  the  charter  of  the  corporation,  made  upon  each  stock- 
holder to  pay  a  proportion  of  the  price  due  on  his  stock,  will  give  rise 
to  a  claim  for  damages  against  the  directors  of  the  corporation.     Suc- 
cession of  Woods,  30  La.  1002. 

1490.  The  bona  fide  sale  of  the  stock  of  an  incorporated  company, 
coupled  with  a  power  of  attorney  to  the  vendee  to  transfer  it  on  the 
books  of  the  company,  is  made  complete  by  the  delivery  to  the  vendee 
of  the  certilicate  of  stock.     It  is  not  necessary  to  the  perfection  of  the 
sale,  and  the  consequent  protection  of  the  stock  from  the  seizure  of  the 
vendor's  creditors,  that  notice  of  the  sale  should  be  served  on  the  cor- 
poration, or    that   an  actual  transfer  of  the  stock  should  have  been 
made   on   its   books.     Samuel  &   A.    W.  Smith  v.  Crescent  City  Live 
Stock  Landing  and  Slaughter   House  Co.,  30  La.  1378. 

1491.  Chartered  bank  adjudicated  a  bankrupt,  a  member  of  its 
last  active  board  of  directors  (the  board  in  existence  when  the  failure 
occurred  and  the  act  of  bankruptcy  was  committed),  cannot  buy  up 
claims  against  it  at  a  discount,  and  entitle  himself  to  credit  thereafter 
at  full  face  value  in  settlement  with  creditors  on  his  personal  liability 
as  a  stockholder.     At  least  this  cannot  be  done  so  as  to  defeat  the  suit 
of  a  creditor,  who  commenced  his  action  before  the  bought-up  claims 
were  actually  applied  in  extinguishment  of  the  stockholder's  personal 
liability,  and   whilst   the   stockholder   held  them,  as  transferee,  open 
against   the  bank,  he  not   having  surrendered  or  canceled  them  until 
after  the  action  was  brought.     When  a  stockholder  is  sued  as  such, 
and  he  defends  on  claims  against  the  bank  purchased  by  him,  his  legal 
disability  as  a  director  to  purchase  at  a  discount  may  be  urged  by  the 
plaintiff  in  reply,  without  any  allegation  to  that  effect  in  the  pleadings. 
Holland  v.  Hey  man  &  Bro.,  60  Ga.  174. 

1492.  When  the  charter  of  a  corporation  provides  that,  in  case 
any  subsequent  increase  of  the  capital  of  the  concern  is  authorized, 
notice   of  sixty  days  shall  be  given  of  such  increase,  within  which 
time   the  stockholders   shall  have  the  privilege  of  taking  additional 
shares,  proportioned  to  the  amount  of  their  stock,  and  that  any  shares, 
not  taken  at  the  expiration  of  that  time,  may  be  disposed  of  by  the 
directors  for  the  benefit  of  the  association.     Held,  that  in  order  to  en- 
title a  stockholder  to  demand  said  additional  shares,  it  must  appear 
that  he  applied  for  the  shares,  and  paid  over  or  tendered  the  money 
necessary   to  purchase  the  same  before  the  expiration  of  the  sixty 
days,  or  before  the  expiration  of  any  additional  delay,  which  may  have 
been  given  by  the  corporation  to  enable  the  stockholders  to  exercise 
said  privilege.     Mrs.  Emily  L.  Hart,  et  al.  v.  St  Charles  Street  Hail- 
road  Co.,  30  La.  758. 

1493.  A  certificate  of  stock  accompanied  by  an  irrevocable  power 
of  attorney,   either  filled   up  or  in  blank,  is  in  the  hands  of  a  third 
party  presumptive  evidence  of  ownership  in  the  holder.     And  where 
the  party  in  whose  hands  the  certificate  is  found  is  a  holder  for  value, 
without   notice   of  any   intervening   equit}',   his   title   cannot  be  im- 
peached.    The  holder  of  the  certificate  may  fill  up  the  letter  of  attor- 


208  MONROE'S  DIGEST 

ney,  execute  the  power,  and  thus  obtain  the  legal  title  to  the  stock. 
And  such  a  power  is  not  limited  to  the  person  to  whom  it  was  first  de- 
livered, but  enures  to  each  bona  fide  holder  into  whose  hands  the  certifi- 
cate and  power  may  pass.  Mere  knowledge  on  the  part  of  a  purchaser 
that  an  executor  or  administrator  is  dealing  with  the  assets  in  a  fidu- 
ciary capacity,  is  not  enough  to  raise  suspicion  or  to  put  the  party  on 
inquiry,  for  the  reason  that  it  is  to  their  primary  duty  to  dispose  of 
the  assets  and  settle  the  estate.  A  sale  and  transfer  by  them  is  or- 
dinarily in  the  line  of  their  duty.  The  common  duty  of  a  trustee  is 
not  administration  or  sale,  but  custody  and  management  for  kiscestuis 
que  trust.  Prall  v.  Tilt,  28  N.  J.  Eq.  479. 

1494.  By  the  Act  of   1872,  ch.   325,  §59,  all  the  stockholders 
of  a  corporation  are  severally  and  individually  liable  to  the  creditors  of 
the  corporation  of  which  they  are  stockholders  to  an  amount  equal  to 
any  unpaid  subscription  held  by   them  respectively.     If  one  stock- 
holder is  required  to  pay  a  debt  due  by  the  corporation  he  is  entitled 
to  contribution  from  all  the  other  stockholders  whose  subscriptions  are 
unpaid.     If  any  stockholder  who   has   not   paid   up  his  subscription 
claims  to  be  a  creditor  of  the  corporation,  his  unpaid  stock  is  liable 
for  the  debt,  and  he  cannot  recover  from  another  stockholder  the  full 
extent  of  his  claim.     Where  a  stockholder,  who  is  a  creditor  of  the 
corporation,  seeks  to  recover  his  debt  from  another  stockholder  who 
has  not  paid  up  his  subscription,  the  plaintiff  must  aver  and  prove 
that  he  has  paid  up  his  whole  subscription  to  the  stock,  and  also  that 
the  defendant  was  a  stockholder  of  the  corporation  at  the  time  the 
debt  was  contracted,  and  that  he  has  not  paid  up  his  subscription.     In 
an  action  against  a  stockholder  of  a  corporation  who  has  not  paid  up 
his  subscription  to  recover  a  debt  due  by  the  corporation,  wherein  the 
plaintiff  declares  on  a  judgment  recovered  against  the  corporation  as 
his  cause  of  action,  the  defendant  is  entitled  to  a  bill  of  particulars,  in 
order  that  it  may  be  informed  whether  the  debt  due  by  the  corporation 
was   contracted   at   the  time  the  defendant  was  a  stockholder.     The 
judgment  is  the  evidence  of  the  debt  due  by  the  corporation,  but  it 
does  not  show  when  the  debt  was  contracted.     The  date  of  the  debt 
incurred  is  a  necessary  part  of  the  evidence  to  fix  the  liability  of  the 
stockholder.      Weber  v.  Fickey,  47  Md.  196. 

1495.  A   president  of  a  corporation  is  a  trustee,  and  will  not  be 
permitted   to  create   such   a   relation  between  himself  and  the  trust 
property  as  will   make   his   own  interest  antagonistic  to  that  of  hio 
beneficiary.     A  president  who  has  voluntarily  purchased  a  small  debt 
against  the  corporation,  will  be  enjoined  from  levying  an  execution  for 
the  payment  of  a  balance  on  the  same,  where  he  has  already  taken 
valuable  property  of  the  corporation  in  part  payment  thereof.     Brews- 
ter,  et  al.  v.  Stratman,  et  aZ.,  4  Mo.  Ct.  Appeals  (St.  (Louis)  41. 

1496.  Where  a  corporation  is  being  defrauded  by  its  officers,  and 
by  collision  the  directors  refuse  to  interfere  to  protect  stockholders,  or 
to  sue,  and  will  not  seek  redress  in  the  corporate  name,  the  individ- 
ual  stockholder  who   seeks   relief  for   himself  and  others  should  so 
frame  his  bill  as  to  set  forth  these  facts,  and  should  make  the  directors 
parties  to  the  bills.     Griffin  v.  St.  Louis    Wine  and  Fruit  Growers 

.,  et  al.,  4  Mo.  Ct.  Appeals  (St.  Louis)  595. 

1497.  When  it  appears  that  the  parties  in  charge  of  the  property 


OP  STANDARD   DECISIONS.  209 

and  affairs  of  a  corporation,  as  liquidators  of  the  same,  have  been 
elected  as  such  by  the  stockholders  of  the  corporation,  and  their 
election  has  not  been  set  aside,  and  no  fear  of  fraudulent  action  on 
their  part  is  alleged,  no  court  is  authorized  to  displace  them,  and  ap- 
point a  receiver  in  their  stead.  John  F.  Follett,  et  al.  v.  Spencer  Field, 
President,  et  al.,  30  La.  161. 

1498.  A   legal  by-law  of  a  corporation  which  provides  that  no 
shares  of  its  stock  shall  be  transferred  on  its  books,  until  the  certifi- 
cate thereof  has  been  surrendered  to  its  president,  or  shown  to  be  lost, 
is  binding  on  all  its  stockholders,  and  their  heirs.     Before  the  heirs  of 
a  deceased  stockholder  can  compel  the  corporation  to  transfer  shares, 
or  pay  accrued  dividends  to  them,  they  must  comply  with  the  require- 
ments of  the  by-laws.     State  ex  rel.  Martin,  et  al.  v.  N.  0.  &  Carrollton 
B.  R.  Co.,  30  La.  308. 

1499.  Where  the  business  of  a  church  corporation  is  required  by 
the  articles  of  incorporation  to  be  conducted  by  its  officers  as  a  board 
of  trustees,  the  president  and  secretary  have  no  power  to  execute  a 
note  binding  upon  the  corporation  without  authority  from  such  board. 
Cattron,  et  al.  v.  The  First  Universal  Society  of  Manchester,  46  Iowa, 
106. 

1500.  Corporation  may  be  bound  by  a  written  contract,  though  a 
private  seal  of  one  of  its  officers  was  used  instead  of  the  corporate 
seal,  and  though  no  record  may  be  found  authorizing  the  officer  to 
make  the  contract,  if  other  evidence  proves  that  he  had  such  author- 
ity, or  that  the  company  satisfied  his  act  afterwards.     Eureka  Co.  v. 
Bailey  Co.,  11  Wall.  U.  S.  488. 

1501.  A  railroad  corporation  of  one  State  cannot  set  up  as  against 
bona  fide  holders  of  its  bonds,  executed  in  due  form,  that  a  mortgage 
securing  them  was  executed  in  another  State,  or  by  virtue  of  resolu- 
tions passed  at  a  meeting  held  in  such  other  State.       Galveston  Bail- 
way  v.  Cowdrey,  11  Wall.  U.  S.  459. 

1502.  Authority  conferred  by  the  trustees  to  erect  a  church  build- 
ing, however,  would  carry  with  it  the  power  to  contract  debts  neces- 
sary for  that  purpose,  and  notes  executed  therefor  would  be  valid. 
Ibid. 

1503.  A  corporation  having  been  recognized  in  the  exercise  of  its 
corporate   functions   by   legislative   enactments,   all   inquiry   into  its 
original  organization   is   precluded.     One   who    deals   with   a   corpo- 
ration in  its  corporate  capacity  cannot  afterwards  question  collaterally 
the  legality  of  the  corporate  existence.     Cowell  v.  Colo.  Spg's  Co.,  3 
Colo.  82. 

1504.  j^^reign  corporation  does  not  become  a  domestic  corpora- 
tion by  complying  with  the  laws  of  this  State,  in  pursuance  of  which 
a  foregin  corporation  may  do  business  here  without  liability  attaching 
to  the  officers,  agents  and  stockholders,  upon  the  contracts  of  the  com- 
pany.    Cook  v.  Nayer,  3  Colo.  386. 

1505.  The  word  "  members,"  as  used  in  the  provision  of  the  in- 
surance act  of  1853  (§  107,  chap.  463,  Laws  of  1853),  providing  that 
the  company   may  sue  or  be  sued  by  any  of  "  its  members  or  stock- 
holders," is  synonymous  with  "  stockholders."     People  v.    Security  L. 
Ins.  Co.,  78  N.  Y.  114. 

1506.  Acts  of  a  corporation  which  are  not  per  se  illegal  or  malum 
14 


210  MONROE'S  DIGEST 

prohibition,  but  which  are  ultra  vires,  affecting,  however,  only  the  in- 
terests of  the  stockholders,  may  be  made  good  by  the  assent  of  the 
stockholders,  so  that  strangers  to  them,  dealing  in  good  faith  with  the 
corporation,  will  be  protected  in  a  reliance  on  those  acts.  Kent  v. 
Quicksilver  Mining  Co.,  78  N  Y.  159. 

1507.  Under  its  charter  (chap.  816,  Laws  of  1868)  the  People's 
Safe  Deposit  and  Savings  Institution  had  power  to  loan  its  capital  and 
funds,  but  was  restricted   in  its  investments  to  such  securities  as  are 
specified  in  its  charter  (§  11)  ;  this  does  not  include  commercial  paper. 
Pratt  v.  Short,  79  N.  Y.  437.     Accordingly,  held,  that  as  the  discount- 
ing of  commerical  paper  is  prohibited  by  statute  (1  R.  S.  712,  §§  3,  6), 
to  any  corporation  not  authorized  by  law  so  to  do,  and  as  paper  so  dis- 
counted is  declared  void,  that  a  promissory  note  discounted  by  said 
corporation  was  void.     Pratt  v.  Short,  79  N.  Y.  437. 

1508.  But,  held,  that  the  illegal  action  of  its  directors  in  thus  in- 
vesting its  funds  did  not  work  a  forfeiture  of  the  money  loaned,  and 
that  this  might  be  recovered,  although  the  security  was  void.     Pratt 
Short,  79  N.  Y.  437. 

1509.  Defendant   E.,  executed  his  bond  and  mortgage  to  secure 
the  People's  Safe  Deposit  and  Savings  Institution,  for  any  indebted- 
ness it  had  against  the  mortgagor,  "  upon  or  by  reason  of  any  promis- 
sory note,  bill  of  exchange,  overdraft,  or  otherwise."     Subsequently 
said  corporation  loaned  to  the  mortgagor  various  sums  of  money  upon 
the   discount   of  his  notes,  which  expressed  that  the  maker  had  de- 
posited the  bond  and  mortgage  as  collateral.     In  an  action  to  foreclose 
the  mortgage,  held,  that  the  notes  were  void,  as  the  corporation  had 
no  power,  under  its  charter,  to  loan  money  on  personal  security  (chap. 
816,  Laws  of  1868),  and  was  prohibited  by  statute  from  discounting 
commercial  paper  (1  R.  S.  712,  §§  3,  6) ;  but  that  the  corporation  was 
authorized  by  its  charter  (§  11)  to  invest  in  bonds  and  mortgages ; 
that  there  was  a  loan  which  was  within  the  condition  of  the  mortgage; 
that  the  fact  that  the  loan  was  made  by  way  of  discount,  and  upon  the 
security  of  the  notes,  as  well  as  of  the  mortgage,  did  not  vitiate  the 
latter ;  and  that  it  was  a  valid  security  for  the  loan,  and  enforceable 
as  such.     Pratt  v.  Eaton,  79  N.  Y.  449. 

1510.  A  lease  to  a  corporation  is  not  terminated  by  its  dissolution, 
and  its  covenant  to  pay  rent  does  not  thereupon  cease  to  be  obligatory. 
People  v.  Natfl  Trust  Co.,  82  N.  Y.  283.     Its  assets,  upon  its  disso- 
lution, become  a  fund  for  the  payment  of  its  debts,  including  those  to 
mature  as  well  as  accrued  indebtedness,  and  all  open  and  subsisting 
engagements  entered  into  by  the  corporation.     People  v.  Nafl  Trust 
Co..  82  N.  Y.  283. 

1511.  A  receiver  of  the  dissolved  corporation  is  authorized  to  re- 
tain out  of  its  assets  sufficient  to  cancel  and  discharge  such  open  and 
subsisting  engagements.     (2  R.  S.  470,  §  74,  et  seq.)     People  v.   Nafl 

Trust  Co.,  82  N.  Y.  283. 

1512.  Until,  therefore,  the  lessor  has,  by  some  act  on  his  part,  re- 
leased or  discharged  the  covenant  to  pay  rent,  he  is  entitled  to  pay- 
ment thereof,  as  it  accrues,  from  the  receiver.     People  v.  Nafl  Trust 
Co..  82  N.  Y.  283. 

1513.  Counterclaim  not  allowable  in  action  for  conversion.     F.  8. 
Imt.  v.  Nat.  Bank,  80  N.  Y.  162. 


OF  STANDARD   DECISIONS.  211 

1514.  A  corporation  is  liable  for  its  wrongful  acts  and  omissions, 
and  for  the  acts  of  its  agents  while  engaged  in  the  business  of  their 
agency  to  the   same   extent   and   under   the   same  circumstances  as 
natural  persons.     F.  Savings  Inst.  v.  Nat.  Bank  of  F.,  80  N.  Y.  162. 

1515.  The  property  of  every  corporation   is  to  be  regarded  as  a 
trust  fund  for  the  payment  of  its  debts ;  the  creditors  of  the  corpora- 
tion have  a  lien  thereon  and  may  follow  it  into  the  hands  of  the  di- 
rectors or  stockholders.     Hastings  v.  Drew,  76  N.  Y.  9. 

1516.  A  private  corporation  cannot  repeal  a  by-law,  so  as  to  im- 
pair rights  which  have  been  given  and  become  vested  by  virtue  of  the 
by-law  ;  and  this  although  the  power   is   reserved  by  its  charter  to 
alter,  amend  or  appeal  its  by-laws.     Kent  v.  Quicksilver  Mining  Co., 
78.  N.  Y.  159. 

1517.  The  consolidation  of  two   companies  does  not  necessarily 
work   a   dissolution  of  both,  and  the  creation  of  a  new  corporation. 
Whether  such  be  its  effect,  depends   upon  the  legislative  intent  mani- 
fested in  the  statute  under  which  the  consolidation  takes  place.     Cen- 
tral Railroad  &  Banking  Co.  v.  George,  92  U.  S.  665. 

1518.  Even   if  the   directors    of  a    private    corporation   have   no 
authority  to  borrow  money  and  mortgage  its  real  estate  for  its  repay- 
ment, yet   if  the   stockholders    ratify  their    action  by  approving  the 
minutes  of  their  proceedings  before  the  loan  is  effected,  and  afterwards 
receive   the   benefit  of  the  loan  and  pay  interest  thereon,  the  stock- 
holders will  be  estopped  from  questioning  the  authority  of  the  direct- 
ors on  bill  to  foreclose  the  mortgage.     Aurora  Agricultural  and  Hor- 
ticulture Society  v.  Paddock,  80  111.  263. 

1519.  A  custom  or  usage  in  a  business  will  not  bind  the  parties  to 
a  contract  unless  it  appears  they  had  knowledge  of  its  existence,  or 
that  it  is  so  general  that  they  must  be  presumed  to  have  contracted 
with  reference  to  it.     Harris  v.  Tumbridge,  83  N.  Y.  92. 


212  MONROE'S  DIGEST 


DAMAGES. 

1520.  In  a  suit  upon  the  first  of  several  promissory  notes  given 
for  the  price  of  a  chattel  sold  by  plaintiff'  to  defendant,  where  it  does- 
not  appear  that   the   notes  were   received  as  payment,  nor  in  whose 
hands  the  remaining  notes  are,  defendant  cannot  recover  any  excess  of 
his  damages,  from  breach  of  warranty  of  the  chattel,  over  the  amount 
due  on  the  note  in  suit.     Renter,  et  al.  v.  St.  Louis,  et  al.,  43  Wis.  693, 

1521.  If  a  plaintiff  surrenders  a  note  given  for  the  price  of  goods- 
sold,  and  proceeds  under  the  common  counts,  he  can  only  recover  their 
real  value  upon  the  defendants   showing  a  warranty,  its  breach,  and 
the   difference   in   the   goods   as  warranted  and  as  they  really  were. 

Wilson,  et  al.  v.  King,  83  111.  232. 

1522.  The  rule  of  damages  for   negligence  or  delay  in  the  trans- 
portation of  goods  by  common  carriers,  is  the  difference  between  the 
market  value  of  the  goods  at  the  time  they  should  have  arrived  at  the 
place   of  delivery  and   the  time  they  did  arrive  there,  with  interest 
thereon,  as  damages,  from  that  time.     Newell,  et  al.  v.  Smith,  et  al.,  49 
Rowell,  255. 

1523.  Where  false  representations  are  made  on  the  sale  of  a  secur- 
ity, the  remedy  of  the  purchaser  is  not  limited  to  a  recovery  simply 
of  the  money  advanced,  if  he  would  have  received  a  benefit  beyond 
that  had  the  fact  been  as  represented.     Grissler  v.  Powers,  81  N.  Y. 
57. 

1524.  When  goods  are  attached  and  sold  by  the  sheriff,  the  proper 
measure  of  damages  is  the  value  of  the  goods  at  the  time  of  the  at- 
tachment, and  not  what  they  brought  at  auction.     Randall  v.  Green- 
hood,  3  Mont.  506 ;  also,    Wormall  v.  Reens,  1  Mont.  627  ;  Earner  v. 
Hathaway,  33  Cal.  117;  also,  9  Cox   562;  Bohm  v.  Dunphy,  1   Mont. 
333  ;  McGavock  v.  Chamberlain,  20  111.  219. 

1525.  Where  an  examiner  of  title  to  real  estate  gives  a  certificate 
of  title,  he  does  hot  thereby  become  an  indemnitor,  but  he  is  liable  for 
any  mistake  arising  from  want  of  due  care  or  diligence,  or  from  igno- 
rance of  his  business.     An  action  for  damages  against  him  for  false  cer- 
tificate is  barred  by  the  statute  of  limitations  in  five  years  from  the 
delivery  of  the  certificate,  and  not  from  the  time  when  it  is  discovered 
that  the  certificate  is  untrue.     Rankin  v.  Shaeffer,  Admr.,  4  Mo.  Ct. 
Appeals  (St.  Louis)  108. 

1526.  Negligence  alone  is  not  to  be  visited  with  punitive  damages  -r 
wilful  misconduct,  or  that  entire  want  of  care  which  would  raise  the 
presumption  of  a  conscious  indifference  to  consequences,  is  necessary 
to  support  such  damages.     Kansas  Pacific  R"*y  Co.  v.  Lundin,Admr.r 
3  Colo.  94. 

1527.  In  an  action  to  recover  the  price  of  goods  sold,  the  measure 
of  damages  is  the  difference  between  the  value  which  the  article  sold 
would  have  had  in  the  market  at  the  time  of  the  sale  and  delivery,  if 
they  had  corresponded  with  the  guaranty,  and  their  actual  value  with 
the  defects.     Smith,  et  al.  v.  Mayer,  etal.,  3  Colo.  207. 

1528.  If  the  party  who  has  contracted  to  deliver  a  certain  thing  at 
a  fixed  price  makes  a  tender  of  it  at  the  proper  time,  and  the  party 
who   has  contracted   to  receive  the  thing  refuses  to  receive  it,  the  for- 


OP   STANDARD   DECISIONS.  213 

tner  may  recover  from  the  latter  whatever  damages  are  proved  to 
Lave  directly  flowed  from  the  latter's  breach  of  contract.  Hartley  v. 
City  of  New  Orleans,  30  La.  264. 

1529.  Recorder  of  deeds  is  liable  in  damages  for  a  false  certificate 
of  researches.     The  liability  of  the  recorder  is  to  the  party  who  asks 
and  pays  for  the  certificate,  not  to  his  assignee  or  alienee.     Houseman 
v.  Girard  Building  Asso.,  81  Penn.  256. 

1530.  An  action   under  Civil  Damage  Act  abates  on  death  of  de- 
fendant, and  cannot  be  revived  against  his  personal  representative. 
Moriorty  v.  Beecher,  99  N.  Y.  429. 


DEBTOR  AND  CREDITOR. 

1531.  B.  gave  a   mortgage  to  secure  a  note  of  $5,200.     He  after- 
•wards  gave  to  the  mortgagees  another  note  for  $5,500,  with  the  privi- 
lege of  two  renewals  upon  making  part  payments  at  each  renewal. 
B.  did  not   request   anjr  renewal  of  the  note.     After  its  maturity  he 
paid   $1,500   without   any  direction  as  to  its  appropriation,  and  the 
mortagees  applied  it  to  the  note  of  $5,200.     Held,  on  foreclosure  of  the 
mortgage,  that  as  against  a  purchaser  of  the  mortgaged  premises  lin- 
ger a  judgment  against  B.,  he  could  not  question  such  appropriation. 
Paterson  Sav.  Inst.  v.  Brush,  29  N.  J.  119. 

1532.  A  debt  claimed  by  a  wife  against  her  husband,  and  first  put 
in  writing  when  his  debts  begin  to  jeopardize  his  future,  must  always 
be  regarded  with  suspicion,  and  when  attempted  to  be  enforced  against 
his  creditors,  must  be  rejected  unless  proved  very  clearly.     Post  v. 
Stiger,  29  N.  J.  554. 

1533.  To  constitute  a  disposition  of  property  by  a  debtor  with  in- 
tent to  defraud  his  creditors,  the  thing  disposed  of  must  be  of  value, 
out  of  which  a  creditor  could  have  made  a  portion  of  his  claim ;  it 
must  have  been  transferred  by  the  debtor,  and  this  with  intent  to  de- 
fraud.    Hoytv.  Godfrey,  88  N.  Y.  669.     See  Fraudulent  Conveyances. 

1534.  Where   the   defendant's   creditors   signed    a   paper   in   the 
words :     "  We  the  undersigned   agree,  in  consideration  of  one  dollar 
paid   us,  to  discharge  H.   Schulting  from  the  legal  payment   of  the 
money  loaned  to  him,  February,  1866  ;  said  Schulting  giving  his  moral 
obligation  to  refund  the  money,  in  part  or  whole,  as  his  means  will  al- 
low in  the  future," — Held,  that  the  agreement  was  not  an  absolute  dis- 
charge of  the  debt,  but  that,  if  the  debtor   acquired  means  in   the 
future,  and  he  refused  to  recognize  the  moral  duty  to  repay  the  money, 
he  would  be  liable  in  an  action  for  the  amount.     The  paper  may  be  re- 
garded  as  an  agreement  on  the  part  of  the  creditors  not  to  enforce 
their  legal  claims,  so  long  as  the  debtor  was  without  the  means  to  pay. 
Where,  after  a  creditor  had  signed  such  agreement,  the  debtor  paid 
the  creditor  a  portion  of  the  original  debt,  and  received  a  release  from 
all  claims  and  demands, — Held,  that,  notwithstanding  such  release,  the 
creditor   might  maintain  an  action  for  the  balance  of  the  original  loan 
if  the   debtor,  at  the  time  of  obtaining   release,  concealed  facts  in  re- 
gard  to  the  value  of  his  interest  in  certain  property,  which  was  of 


214  MONROE'S  DIGEST 

large  value,  but  which,  before  the  release,  he  had  stated  to  the  creditor 
was  of  little  or  no  value,  it  appearing  that  when  the  action  was  com- 
menced the  debtor  had  means  to  pay  his  debts.  Dambman  v.  Schulting, 
54  Howard,  N.  Y.  289. 

1535.  Debtor  may,  without  providing  for  existing  debts,  create 
new  debt,  bona  jide,  and  give  a  trust  deed  to  secure  it.     Coster  v.  Neal, 
24  Ga.  346. 

1536.  Where,   in  an  agreement  for  an  extension  of  the  time  of 
payment  made  between  a  creditor  and  the  principal  debtor,  the  right 
to  proceed  against  the  surety  is  reserved,  such  agreement  is  held  to  be 
conditional  upon  the  assent  of  the  surety,  and  he  is  not  discharged 
thereby.     Nat.  Bank  v.  Bigler,  83  N.  Y.  51. 

1537.  Creditor  who  has  loaned  money  to  a  corporation  in  excess 
of  what  constitution  authorized  it  to  borrow  cannot  have  a  decree  for 
return  of  the  specific  money  if  used  for  public  works,  nor  has  he  a 
lien  on  those  works.     Litchfield  v.  Ballon,  114  U.  S.  190. 

1538.  Such  an  order  does  not  import  that  the  debt  so  acknowledged 
is   only  to  be  paid  out  of  the  fund  against  which  it  is  drawn.    Ibid. 

1539.  To  constitute  an  acknowledgment  of  a  debt,  such  as   will- 
take  it  out  of  the  statute,  the  writing  must  acknowledge  an  existing 
debt,  and  must  contain  nothing  inconsistent  with  an  intention  on  the 
part  of  the  debtor  to  pay.     Ibid. 

1540.  Oral  evidence,  however  may  be  resorted  to,  as  in  other  cases- 
of  written  instruments  in  aid  of  the  interpretation.     Ibid. 

1541.  Upon  the  insolvency  of  the  corporation,  (savings  bank),  the 
depositors  stand  as  other  creditors  having  no  greater,  but  equal  rights- 
to  be  paid  ratably  out  of  the  insolvent  estate.     People  v.  M.  &  T. 
Sav'gs  Inst'n,  92  N.  Y.  7. 

1542.  Claim  which  is  illegal  and  absolutely  forbidden  by  statute 
cannot  lawfully  be  made  a  subject  of  arbitration.     Hall  v.  Kimmer,  61 
Mich.  269. 

1543.  A  promise  made  to  a  creditor,  not  to    debtor,  is   binding. 
And  no  case  in  which  it  is  not  to  him,  or  to  some  person  representing: 
him,  is  within  the  statute.     If,  therefore,  one,  on  an  adequate  consider- 
ation, promises   a   debtor  to  pay  what  the  latter  owes  generally,  or 
what  he  owes  a  particular  person,  this  is  valid  though  not  in  writing. 
The  debt  is  not  "  another's,"  but  the  very  person's  to  whom  the  promise 
is  made.     Hawes  v.  Woolcock,  26  Wis.  627  ;  Britton  v.  Angier,  48  N.  H. 
420;  Eastwood  v.    Kenyon,   11  A.   &   E.  Eng.  438  ;   Cold  v.  Hoot,  17 
Mass.  229;   Tibbet*  v.  Flanders,  1  Gray  Mass.  391. 

1544.  An  order  on  a  third  person  for  the  payment  of  money,  in  the 
absence  of  evidence  showing  a  different  relation  between  the  drawer 
and  payee  is  an  acknowledgment  in  writing  by  the  former  of  a  debt 
within   the  statute  of  limitations  (Code,  Pro.,  §  110  ;  Code,  Civ.  Pro.r 
§  395)  and  continues  the  debt  for  a  period  of  six   years  from  its  date. 
Manchester  v.  Braedner,  107  N.  Y.  346. 

1545.  A  mere  general  creditor  of  a  firm,  having  no  execution  or 
attachment,  has  no  lien  whatever  upon  its  personal  assets.     Saunders 
v.  Reilly,  105  N.  Y.  12. 

1546.  A  creditor  who  receives  from  his  debtor  a  certificate   in 
•writing,  not  negotiable,  of  the  amount  of  his  debt  and  sells  the  certif- 
icate  to  a  third  person,  for  value  less  than  its  nominal  amount,  thereby 


OF   STANDARD  DECISIONS.  215 

authorizes  the  purchaser  to  receive  the  amount  from  the  debtor,  and 
cannot  after  the  debtor  has  paid  it  to  the  purchaser,  maintain  any  ac- 
tion against  the  debtor.  Looney  v.  District  of  Columbia,  113  U.  S, 
258. 

1547.  Nor  can  the  creditor  who  receives  from  his  debtor  a  nego- 
tiable instrument  of  the  debtor  for  the  amount  of  his  debt,  and  sells  it 
for  its  market  value  to  a  third  person,  sue  the  debtor  on  the  original 
debt.     Ibid. 

1548.  Taking  promissory  note  from  one  of  several  joint  debtors  or 
from  third  person  is  not  a  discharge  of  the  debt  unless  such  is  the  ex- 
press agreement.     Tyner  v.  Stoops,  11  Ind.  22. 

1549.  Suit  may  be  brought  on  coupon,  by  owner,  when  detatched 
from  the  bond  to  which  they  once  belonged,  and  though  the  owner  of 
the  coupon  be  no  longer  owner  of  the  bond.      The  City  v.  Lamson,  9 
Wall.  U.  S.  478. 

.1550.  The  rule  that  a  trader  who  is  not  able  to  pay  all  his  debts  in 
the  usual  ordinary  course  of  business  as  persons  carrying  on  trade 
usually  do,  is  to  be  regarded  as  insolvent — approved,  as  a  general  rule. 
Driggs  v.  Moore,  1  Abbott,  U.  S.  440. 

1551.  Failure  to  pay  a  single  debt  when  due,  is  not  sufficient  to 
establish  insolvency.     Ibid. 

1552.  One  who  is  insolvent  is  disqualified  from  being  appointed  an 
administrator.     Levan's  Appeal,  112  Penn.  294. 

1553.  Insolvency  is  the  state  of  a  person  who,  from  any  course  is 
unable   to   pay   his  debts  in  the  ordinary  or  usual  course  of  trade. 
Ibid. 

1554.  Money  laid  out  and  expended  in  favor  of  another,  after  his 
death,  becomes  a  claim  against  his  estate,  and  must  be  presented  to  his 
executor    or    administrator  for  allowance.      Rutherford  v.  Talent,  6 
Mont.  T.  132. 

1555.  Nothing  short  of  a  clear,  distinct,  an.d  unequivocal  promise 
will  revive  a  debt  once  barred  by  the  Bankrupt  Act.     Allen  &  Co.  v. 
Ferguson,  18  Wall.  U.  S.  1. 

1556.  An  exchange  of  values   may  be  made  at  any  time,  though 
one  of  the  parties  to  the  transaction  be  insolvent.     There  is  nothing 
in  the  Bankrupt  Act  which  prevents  one  insolvent  from  dealing  with 
his  property  at  any  time  before  proceedings  in  bankruptcy  are  taken 
by  or  against  him,  provided  such  dealing  be  conducted  without  any 
purpose  to  defraud  or  delay  his  creditors  or  to  give  preference  to  any 
one,  and  do  not  impair  the  value  of  his  estate.     Cook  v.  Tullis,  18 
Wall.   U.  S.  332  ;  also,  Tiffany  v.  Boatman's  Institute,  18  Wall.  U.  S. 
376. 

1557.  It  seems  that  a  "  mutual  credit  "  is  a  knowledge  on  both 
sides  of  an  existing  debt  due  to  one  party,  and  a  credit  by  the  other 
party,  founded  on  and  trusting  to  that  debt  as  a  means  of  payment. 
Munger  v.  Albany  City  Nat.  Bank,  85  N.  Y.  580. 

1558.  Claims  against  the  estates  of  decedents,   resting  on   mere 
oral  testimony  of  declarations  and  admissions  of  the  decedent  are  very 
dangerous,  and  not  to  be  favored  by  the  Courts.     Pollock  v.  Ray,  85 
Penn.  St.  428. 

1559.  Any  agreement  with  one  creditor  for  an  advantage  to  him 
over  other  creditors,  made  to  induce  him  to  join  in  the  composition,  or 


216  MONROE'S  DIGEST 

required  by  him  as  a  condition  upon  which  he  shall  become  a  party  to 
it,  which  is  not  provided  for  in  the  composition  deed,  and  is  not  dis- 
closed to  the  other  creditors,  is  utterly  void,  and  is  incapable  of  being 
enforced  or  confirmed  even  as  against  the  assenting  debtor.  A  security 
given  in  pursuance  of  such  a  bargain  or  a  subsequent  promise  of  pay- 
ment, is  equally  void  with  the  antecedent  agreement ;  and  money  paid 
by  the  debtor  under  such  an  agreement,  in  excess  of  the  due  propor- 
tion of  such  creditor's  debt,  may  be  recovered  back,  unless  it  be  paid 
under  such  circumstances  as  to  be  regarded  in  law  as  a  voluntary  pay- 
ment. Grossley  v.  Moore,  40  N.  J.  Law,  27. 

1560.  Debtors  residing  without  this  State  are  excluded  ex  vi  ter- 
mini from   the  operation  of  the  Statute   (R.   S.  p.  418,  §  103)  which 
provides  that  "  Suits  shall  be  commenced  before  justices  in  the  town- 
ship in  which  the  debtor  resides."     Such  non-resident  debtors  may  be 
sued  wherever  found.      Wagner,  et  al.  v.  Hallock,  et  al.,  3  Colo.  176. 

1561.  When  a  debtor,  after  being  discharged  from  the  obligations 
of  his  debts  by  a  deed  of  composition  with  his  creditors,  voluntarily 
gives  a  security  for  a  debt  from  which  he  is  discharged  by  such  compo- 
sition and  which  is  only  due  in  conscience,  such  security  may  be  en- 
forced in  a  court  of  law.     Grossley  v.  Moore,  40  N.  J.  L.  R.  27. 

1562.  Where  a  debtor  creates  or  appropriates  a  fund  for  the  pay- 
ment of  a  particular  debt  or  lien,  the  duty  of  the  holder  of  the  fund  is 
not  performed  by  applying  it  to  the   pa37ment  of  another  debt ;  the 
debtor  has  the  right  to  determine  as  to  the  application,  and  to  have 
the  application,  when  made,  carried  out.    Bennett  v.  Austin,  81  N.  Y.  308. 

1563.  Where  a  bankrupt  owes  a  debt  to  two  persons  jointly,  and 
holds  a  joint  note  given  by  one  of  them  and  a  third  person,  the  two 
claims  are  not  subject  to  set-off  under  the  Bankrupt  Act,  being  neither 
mutual  debts  nor  (without  more)  mutual  credits.     Gray  v.  Hollo,  18 
Wall.  629. 


DEEDS. 

1564.  Where  the  distances  and  areas  in  the  description  of  a  deed 
<Jo  not  correspond  so  as  to  describe  the  same  quantity  of  land,  the 
terms  describing  the  distances  will  control  that  describing  the  area,  and 
measure  the  quantity  conveyed,  in  the  absence  of  words  indicating  that 
the  latter  is  to  prevail.     Sanders,  et  al.  v.  Gooding,  et  al.,  45  Iowa,  463. 

1565.  In  deeds  as  well  as  notes,  where  words  and  figures  are  used 
to  describe  the  same  thing,  and  are  contradictory,  the  description  by 
words  will  govern.     Thus,  where  a  deed  conveyed  "  lot  number  (142), 
•one  hundred  twenty-four  (124),"  the  lot  conveyed  was  held  to  be  124 
And  not  142.     Bradshaw,  et  al.  v.  Bradbury,  64  Mo.  334. 

1566.  No  title  passes  by  a  deed  for  lands,  without  it  has  been  de- 
livered.    A  deed  for  land  without  the  name  of  a  grantee,  when  it  is 
acknowledged  and  delivered,  is  invalid.     There  must  be  in  every  grant 
a  grantor,  a  grantee,  and  a  thing  granted  ;  and  a  deed  wanting  in. 
eitTier  essential,  is  absolutely  void.      Wliitaker  v.  Miller,  et  al.,  83  111. 
381. 

156*7.     In  determining  the  dividing  lines  between  tracts   of  land, 
courses,   calls   and  distances,   must   give   way   to  the  marks  on  the 


OF  STANDARD   DECISIONS.  217 

ground,  and  these  marks  control  as  well  the  description  found  in  the 
patent  as  that  found  in  the  survey.  The  deed  of  the  treasurer  to  the 
Commissioners  of  Warren  County  having  been  lost,  its  deliver}'  and 
contents  were  properly  proved  by  the  books  found  in  custody  of  the 
proper  officers.  Watson  v.  Jones,  85  Penn.  St.  117. 

1568.  A  deed  otherwise  absolute  on  its  face,  containing  a  clause, 
"  subject,  nevertheless,  to  the  right  of  redemption  of  the  property  by 
the  grantor  "  is  a  mortgage.     Mellon  v.  Lemon,  111  Penn.  56. 

1569.  Although  inadequacy  of  price,  standing  alone,  is  not  enough 
to  warrant  a  court  of  equity  in  setting  aside  an  executed  conveyance, 
yet,  where  there  is  inadequacy  of  price  so  gross  that  common  judg- 
ment revolts  at  it,  a  court  of  equity  will  lay  hold  of  the  slightest  addi- 
tional circumstances  of  fraud  or  oppression,  as  a  ground  for  declaring 
the  transaction  void.     Holmes  v.  Holmes,  1  Abbott,  U.  S.  525. 

1570.  That  a  deed  is  ineffectual  to  convey  title  as  to  part  of  the 
lands  described  is  of  itself  no  ground  for  setting  aside  the  deed,  nor 
will  a  court  of  equity  entertain  a  bill  for  compensation  or  damages, 
except  as  incidental  to  other  relief,  when  there  is  an  adequate  remedy 
at  law.     Jaeger  v.  Whitsett,  3  Colo.  105. 

1571.  A  condition  in  a  deed,  granting  an  estate  in  fee,  that  intoxi- 
cating liquors  shall  never  be  manufactured,  sold  or  otherwise  disposed 
of  as  a  beverage  in  any  place  of  public  resort  in  or  upon  the  premises 
granted,  or  upon  any  part  thereof,  the  grantor  reserving  the  right 
upon  condition  broken  to  declare  the  deed  void,  and  all  right,  title  and 
interest  in  the  premises  in  such  event  to  revert  to  the  grantor,  and  the 
grantee  consenting  to  the  condition  and  reservation,  held  to  be  a  valid 
condition,  binding    upon    the  grantee,  not   repugnant  to  the   estate 
granted,  and  that  upon  condition  broken  the  grantor  might  maintain 
ejectment,  upon  proof  of  the  breach,  without  previous  entry,  demand 
or  notice.      Gowell  v.  Colorado  Springs  Co.,  3  Colo.  82. 

1572.  A  deed  duly  recorded  is  constructive  notice  of  its  existence 
and  contents  to  all  persons  claiming  what  is  thereby  conveyed  under 
the  same  grantor  by  subsequent  purchase,  but  not  to  other  persons. 
Gillett,  et  al.  v.  Gaffney,  et  al.,  3  Colo.  351. 

1573.  The  delivery  of  a  deed  implies  its  acceptance  by  the  grantee, 
in  the  absence  of  fraud,  artifice,  or  imposition.     Davenport  v.  Whisler 
&  Shields,  46  Iowa,  287. 

1574.  By   the   acceptance   of  the   deed   the   contract   of   sale   is 
executed  and  merged  therein  ;  any  inconsistencies  between  its  original 
terms   and  the    deed  are  in  general  to  be  explained  by   the   latter. 
Ibid. 

1575.  The  holder  under  a  quit-claim  deed  is  not  entitled  to  protec- 
tion,  as  a   bona  fide  purchaser  without  notice,  against  outstanding 
equities.     Springer,  et  al.  v.  Bartle,  46  Iowa,  688. 

1576.  Although  a  deed  is  inter  partes,  a  covenant  therein  made 
with  a  third  person  may  be  enforced  by  such  third  person  by  suit,  if  it 
clearly  appears  by  the   instrument  that  it  was  the  intention  to  confer 
such  right.     National  Bank  at  Dover  v.  Segar,  39  N.  J.  Law,  173. 

1577.  Ordinarily  the  date  of  a  deed  (admitted  to  have  been  de- 
livered,) is  prima  facie  evidence  of  the  time  of  its  delivery,  but  this 
presumption  may  be  rebutted  by  testimonj7.     Cain  v.   Robinson,  20 
Kansas,  456. 


218  MONROE'S  DIGEST 

1578.  In  the  description  in  a  deed  courses  and  distances  must 
•  yield  to  fixed  monuments  or  to  any  points  named  which  are  capable 

of  being  certainly  ascertained.     Sanders  v.  Eldridge,  et  al.,  46  Iowa, "34. 

1579.  The  recitals  in  a  deed  as  to  the  consideration,  are  not  con- 
clusive, but  the  time  and  actual  consideration  may  be  shown  by  proof 
aliunde.     Fraley  v.  Bentley,  et  al.,  1  Bennett's  Dakota  Rpts.  25. 

1580.  The  placing  on  record  of  a  deed  to  a  party,  such  party  be- 
ing wholly  ignorant  of  the  existence   of  the   deed,  and   not   having 
authorized  or  given  his  assent  to  the  record,  does  not  constitute  such  a 
delivery  as  will  give  the  grantee  precedence  of  a  mortgage  executed 
between  such  a  placing  of  the  deed  on  record  and  a  formal  subsequent 
delivery.     Irvine  v.  Irvine,  9  Wall.  U.  S.  617. 

1581.  Where  a  person  has  bought  land  and  paid  for  it,  the  deed 
subsequently  made  in  consequence  does  not  confer  a  new  title  on  him ; 
but   confirms   the   right   which   he   had  acquired  before  the  deed  was 
made.     Irvine  v.  Irvine,  9  Wall.  TJ.  S.  617. 

1582.  Under  the  recording  acts  of  Illinois,  which  enact  that  deeds 
shall  take  effect  as  against  creditors  and  subsequent  purchasers  from 
the  time  that  they  are  filed  of  record,  it  is  necessary,  in  order  to  defeat 
a  subsequent  purchaser  for  value,  of  an  unrecorded  title,  that  he  have 
notice  of  the  previous  conveyance  or  of  some  fact  sufficient  to  put  a- 
prudent  man  upon  inquiry.     Mills  v.  Smith,  8  Wall.  U.  S.  27. 

1583.  When  one  makes  a  deed  of  land  covenanting  that  he  is  the 
owner,  and  subsequently  acquires  an  outstanding  and  adverse  title,  his 
new  acquisition  enures  to  the  grantee  on  the  principle  of  estoppel. 
Irvine  v.  Irvine,  9  Wall.  U.  S.  617. 

1584.  A  simple  receipt  not  under  seal  "  for  forty  dollars  "  for  my 
share  of  the  "  lot,"  in  dispute  is  not  sufficient  to  divest  the  interest  of 
the  alleged  vendor  under  the  statute  of  frauds.     Mason  v.  Ammon,  11T 
Penn.  127. 

1585.  The  general  rule  in  Texas  for  construing  descriptions  in 
grants  of  land  is  :  that  natural  objects  control  artificial  objects ;  that 
artificial  objects  control  courses  and  distances ;  that  courses  control 
distances ;  and  that  courses  and  distances  control  quantity.     Ay  res  v. 

Watson,  113  U.  S.  594. 

1586.  If  a  deed  is  not  so  certified  and  acknowledged  as  to  be  com- 
petent evidence,  yet  if  it  was  recorded,  it  was  in  Illinois,  notice  to  sub- 
sequent purchaser.     Stebbins  v.  Duncan,  108  U.  S.  32. 

1587.  Where  a  party  receiving  an  absolute  deed  convenants  with 
grantor  to  reconvey  the  lands  when  the  money  which  it  was  given  to 
secure  shall  be  paid,  both  instruments  taken  together  constitute  a 
mortgage.     Lanahan  v.  Seans,  102  U.  S.  318. 

1588.  A  deed  with  power  of  sale,  to  secure  a  debt,  whether  made 
by  debtor  or  third  person,  is  in  equity  a  mortgage,  if  right  to  redeem 
on  payment  of  debt  is  retained.     Shillaber  v.  Robinson,  97  U.  S.  68. 

1589.  One  claiming  under  a  conveyance  in  form  of  a  deed,  but  in, 
fact   given   as   a   mortgage,  cannot  maintain   ejectment   against   the 
grantor  or  any  other  person.     Shattuck  v.  Bascom,  105  N.  Y.  39. 

1590.  On  proof  that  a  deed  is  actually  lost,  not  intentionally  de- 
stroyed, in  Illinois,  certified  copy  from  register's  office  may  be  usedr 
though  there  is  an  error  in  the  copy.     How  such  error  is  proved. 
Booth  v.  Tierman,  109  U.  S.  205. 


OF   STANDARD   DECISIONS.  219 


DEED  OF  TRUST. 

1591.  A  deed  of  trust  executed  for  the  purpose  of  securing  a  debt? 
and  to  be  void  upon  payment  of  the  debt,  and  containing  a  power  of 
sale  upon  default,  is  in  legal  effect  a  mortgage.     The  grantor  retains 
an  equity  of  redemption,  which  is  subject  to  seizure  and  sale  under 
execution  as  other  equitable  estates  are  under  the  statute.     But  where 
the  grantor  parts  with  his  title  absolutely,  conveying  it  to  the  trustee 
to  sell  for  the  purpose  of  raising  a  fund  to  pay  debts,  it  is  properly  a 
deed   of  trust,  and   no   interest,  legal    or    equitable,   remains   in    the 
grantor.      This   opinion   is   held    in    Sumner,  533 ;  Story's   Eq.,  sec. 
1017  ;  20  Ohio,  469;  Ibid,  572;  2  Devarou,  555;  Eaton  v.  Whitney,  & 
Pick,  484  ;  Bloom  v.  Eensselaer,  15   111.  505.     Approved  in  Turner  v. 
Watkins,  et  al,  31  Ark.  429. 

1592.  It  is  now  finally  and  definitely  settled  by  this  court,  that  a- 
deed  of  trust  to  secure  the  payment  of  a  debt  does  not  operate  as  an 
absolute  transfer  of  the  property  on  which  it  is  executed  to  thetrusteer 
upon  the  trust  mentioned  in  the  deed,  defeasible  upon  conditions  therein 
stipulated  ;  but  that  such  instrument  is,  in  legal  effect,  a  mere  mort- 
gage, with  a  power  to  sell.     McLane  v.  Paschal,  47  Texas,  365. 

1593.  An  actual  delivery  of  a  trust  deed  to  the  trustee  therein 
named,  who  has  no  interest  in  the  trust,  is  not  required,  but  a  delivery 
to  the  cestui  que  trust,  together  with  the  notes  secured  by  it,  will  fully 
answer  the  requirements  of  the  law.     Groeker,  et  al.  v.  Lowenthal,  et 
al,  83  111.  579. 

1594.  The   parties   to  notes   secured   by   deed  of  trust  have  the 
right,  in  their  mutual  dealings,  to  treat  them  as  unpaid,  and  as  stand- 
ing as  security  for  future  advances,  and  they  will  be  good  for  such  ad- 
vances as  between  the  parties  and  all  others  not  prejudiced  thereby. 
Darst  v.  Gale,  et  al.,  83  111.  136. 

1595.  Where  the  holder  of  notes  secured  by  a  deed  of  trust,  be- 
comes the  purchaser  of  property  at  the  trustees'  sale,  a  mere  indorse- 
ment of  the  amount  of  his  bid  on  the  notes  will  be  a  sufficient  compli- 
ance with   the   power  and  terms  of  sale  requiring  it  to  be  for  cash. 
Jacobs  v.  Turpin,  83  111.  424. 

1596.  By   virtue    of  the   Act   of    May   28th,   1715,  the  words, 
"  grant,  bargain  and  sell  "  contained  in  a  deed,  are  a  covenant  of  sem'n, 
a  covenant  for  quiet  enjoyment,  and  a  covenant  against  incumbrajjces. 
Memmert  v.  McKeen,  112  Pa.  315. 

1597.  Provision  in  deed  of  trust  by  which  possession  was  to  re- 
main in  grantor  until,  default  made  by  him  does  not  render  the  convey- 
ance fraudulent  as  against  creditors.      Wilson  v.  Russell,  13  Md.  495. 


DEFENCE. 

1598.  Where  a  party  is  induced  to  enter  into  an  executory  con- 
tract for  the  purchase  of  lands  by  means  of  false  representations  on 
the  part  of  the  vendor,  if,  after  discovery  of  the  fraud,  he  accept  a 
conveyance,  he  cannot  set  up  the  fraud  as  a  defence  in  an  action  for  the 
purchase  money.  Vernol  v.  Vernol,  18  Sickels,  N.  Y.  45. 


220  MONROE'S  DIGEST 

1599.  Where  a  corporation  has  fully  performed  a  contract  on  its 
part  to  manufacture  and  deliver  certain  articles,  it  is  no  defence  to  an 
action  brought  to  recover  the  purchase-price,  that  the  contract  was  not 
within  or  incidental  to  its  chartered  powers,  and  privileges  or  the  pur- 
poses for  which  it  was  created.      Whitney  Arms  Co.  v.  Barlow,  et  al., 
18  Sickels,  N.  Y.  62. 

1600.  In  an  action  upon  two  promissory  notes,  the  answer  alleged 
an  agreement  between  the  parties  for  a  valuable  consideration  made  at 
the  time  the  notes  were  discounted,  for  the  extension  of  the  time  of 
payment  for  six  months,  by  giving  renewal  notes  for  those  in  suit, 
that  at  the  maturity  of  the  notes,  defendants  tendered  new  notes  as 
agreed,  which  plaintiff  refused  to  accept.     Held,  that  this  count  in  the 
answer  set  up  a  good  defence.   N.  T.  S.  L.  &  T.  Co.  v.  Helmer,  77  N.  Y.  6 i. 

1601.  Of  usury,  in  action  to  foreclose  a  mortgage,  when  not  af- 
fected by  conveyance  of  land  subject  to  mortgage.     K.  L.  Ins.  Co.  v. 
Nelson,  78  N.  Y.  137. 

1602.  Neither  the  fact  that  a  check  was  dishonored  when  trans- 
ferred, or  that  presentment  for  payment  has  been  delayed,  discharges 
the  drawer.     If  dishonored,  any  defence  thereto  against  the  payee  will 
be  available  against  his  transferee ;  but  no  presumption  arises  that 
overdue  or  dishonored  paper  is  invalid.     If  loss  results  to  the  drawer 
by  delay  in  presentment,  that  is  matter  of  defence.     Cowing  v.  Alt- 
man,  79  N.  Y.  167. 

1603.  Where  an  order  is  drawn  for  a  valuable  consideration,  pay- 
able out  of  a  particular  fund  in  the  hands  of  a  drawee,  the  drawee  is 
bound  after  notice  to  apply  the  fund  in  payment,  and  voluntary  pay- 
ment thereafter  to  the  drawer  is  no  defence  in  action  by  payee.     Brill 
v.  Tattle,  81  N.  Y.  454. 

1604.  In  an  action  against  trustees  of  a  savings  bank  for  negli- 
gence, two  of  the  defendants,  after  the  commencement  of  the  action, 
filed  petitions  for  their  discharge  in  bankruptcy  and  were  discharged 
before  judgment.     Held,  that  such  a  discharge  was  not  a  defence  to  the 
action,  as  the  claim,  being  for  unliquidated  damages  occasioned  by  a 
tort,  was  not  provable  in  bankruptcy  and  therefore  not  discharged. 
Hun  v.  Gary,  82  N.  Y.  65. 

1605.  When  discharge  in  bankruptcy  of  an  attachment  debtor  no 
defence  in  action  on  undertaking  given  to  discharge  the  attachment. 
Me  Combs  v.  Allen,  82  N.  Y.  114. 

1606.  In  action  by  State  bank  on  note,  the  fact  that  it  purchased 
note  at  a  discount  greater  than  lawful  interest,  not  a  defence.     A.  S. 
Bank  v.  Savery,  82  N.  Y.  291. 


DEFINITIONS. 

1607.  The  term  "  mariners  "  includes  a  purser  permanently  attached 
to  a  vessel;  and  a  theft  or  embezzlement  by  him  is  included  in  the  term 
"  barratry."     Spinetti  v.  Atlas  S.  S.  Co.,  80  N.  Y.  71. 

1608.  Where  the  holder  of  a  promissory  note  parts  with  the  pos- 
session thereof  to  the  maker,  it  is  a  "  personal  transaction  "  between 
them,  within  the  meaning  of  section  399  of  the  Code  of  Procedure. 

Van  Gelder  v.  Van  Gelder,  81  N.  Y.  625. 


OF   STANDARD   DECISIONS.  221 


DEPOSITS. 

1609.  The  fact  that  the  principal  in  a  note  payable  to  a  bank  has- 
funds  on  deposit  in  the  bank  after  the  maturity  of  the  note,  and  before 
suit  on  the  note,  exceeding  the  sum  due  thereon,  and  the  bank  does  not 
appropriate  the  same  to  its  payment,  does  not  discharge  the  surety. 
Voss  v.  The  German-American  Bank  of  Chicago,  83  111.  599. 

1610.  Special   deposits   withdrawn   by  person   having   authority,, 
though  bank  acted  without  knowledge  of  that  fact,  not  liable  to  answer 
for.     Where  deposits  consist  of  stocks  and  bonds,  written  authority 
indorsed  on  certificate,  to  pay  out  the  dividends  and  coupons,  no  au- 
thority to  surrender  stock  and  bonds.     Chat.  Nat.  Bank  v.  Schleyr 
Guardian,  58  Ga.  369. 

1611.  M.,  shortly  before  his  death,  indorsed  a  bank  deposit-receipt 
and  delivered  it  to  S.,  stating  that  it  was  for  his  (M.'s)  niece,  K. ;  S. 
indorsed  the  document,  and,  after  M.'s  death,  presented  it  to  the  bankr 
who  transferred  the  amount  to  S.  against  the  bank.     Held,  that  the 
deposit-receipt  was   not  a  negotiable  instrument  passing  by  indorse- 
ment ;  that  there  was  no  equitable  assignment  of  it ;  that  if  the  trans- 
action constituted  S.  an  agent  of  M.,  his  authority  was  revoked  by  M.'s- 
death  ;  that  the  transaction  did  not  amount  to  a  donatio  mortis  causd. 
Admr  of  D.  R.  Moore  v.  Ulster  Banking  Co.,  2  Irish  Reports,  Com- 
mon Law  Series,  512. 

1612.  In  an  action  against  a  savings  bank,  on  an  account  annexed,, 
to  recover  the  amount  of  a  deposit,  the  book  of  deposit  is  admissible  in 
the  evidence,  at  least  to  show  the  amount  of  the  plaintiff's  money  re- 
ceived by  the  defendant,  and  it  does  not  appear  to  have  been  admitted 
for  any  illegal  purpose,  although  the  book  contained  printed  conditions- 
of  deposit  and  payment.     Brown  v.  Abington  Savings  Bank,  119  Mass. 
69. 

1613.  A  safe  deposit  company  contracted  with  a  depositor  to  u  keep- 
a  constant  and  adequate  guard  over  and  upon  the  safe  "  rented  by  him. 
A  number  of  bonds  deposited  therein  were  found  to  be  missing:     Heldr 
that  the  compan}'  was  bound  to  make  some  explanation  for  the  absence 
of  the  bonds.     Held,  further,  that  the  question  whether  the  company 
was  guilty  of  negligence  was  properly  left  to  the  jury.     Safe  Deposit 
Co.  v.  Pollock,  85  Penn.  St.  391. 

1614.  A  certificate  of  deposit,  payable  on  the  return  thereof  prop- 
erly indorsed,  is  in  legal  effect  a  promissory  note,  payable  on  demand ; 
and  the  principle  applicable  to  such  notes  should  be  applied  to  these 
certificates.     The  claim  that  a  certificate  of  deposit  and  a  certified 
check  are  in  legal  sense  the  same  thing,  are  governed  by  the  same 
rules,  and  that  no  mere  lapse  of  time  will  render  such  check  or  certifi- 
cate past  due  or  dishonored,  is  held  not  well  founded.     Certificates  of 
deposit  are  not  intended  for  long  circulation,  or  for  more  than  a  tem- 
porary convenience,  and  to  hold  that  any  ostensibly  demand  paper 
could  be  circulated  or  used  as  bankbills,  would  be  contrary  to  the" 
general  policy  of  our  banking  laws.      Tripp  v.  Curlessius,  36  Mich. 
494. 

1615.  A  depositor  in  a  savings  bank,  who  is  also  a  debtor  to  the 
bank,  as  a  borrower  of  its  funds,  cannot,  upon  the  insolvency  of  the 


222  MONROE'S  DIGEST 

savings  bank  set-off  the  amount  of  bis  deposit  against  his  indebted- 
ness.     Osborn  v.  Byrne,  43  Conn.  155. 

1616.  Where,  however,  a  person  indebted  to  a  savings  bank  as  a 
borrower,  deposited  an  amount  less  than  the  debt,  intending  to  use  the 
money  so  deposited  for  a  payment  upon  the  debt,  it  was  held  that  the 
.amount  deposited  could  be  set  off  against  the  debt.     Ibid. 

1617.  A  savings  bank  is  an  agent  for  the  depositors,  receiving  and 
loaning  their  money,  and  its  losses  are  their  losses,  and  are  to  be  borne 
by  them  equally,  according  to  their  interest.     Ibid. 

1618.  A  bank  of  deposit  has  no  power  to  apply  a  money  deposit  in 
its  possession,  belonging  to  the  maker  of  a  promissory  note  payable  at 
such   bank,  to   the   satisfaction   of  such   note,  without   his   consent. 
Scott  v.  Shirk,  60  Ind.  160. 

1619.  When  a  bank  receives  deposits  it  undertakes  to  pay  the  de- 
positor's check  to  the  holder,  if  it  has  funds  of  the  depositor  sufficient 
to  pay  the  check  when  presented  ;  and  this  promise  or  agreement  be- 
tween the  bank  and  its  depositor,  implied  from  the  universal  usage  or 
custom  of  the  business  world  enures  to  the  benefit  of  the  holder  of  the 
•check,  and  if  he  presents  it  to  the  bank  for  payment,  and  payment  is 
refused,  the  bank  having  funds  of  the  depositor  sufficient  to  pay  it 
when  presented,  he  may  sue  and  recover  of  the  bank  upon  the  check. 
McGrade  v.  German  Savings  Inst.,  4  (St.  Louis)  Mo.  Ct.  Appeals,  330. 

1620.  A  depository  may  show  by  parol  evidence  that  the  money 
deposited  with  him,  and  for  which  he  had  given  his  written  receipt,  was 
•composed  of  certain  bank  bills.     A  depository  is  not  liable  for  any  de- 
preciation in  the  value  of  bank   bills  deposited  with  him,  unless  it 
appears  that  the  depreciation  has   proceeded  from  his  fault,  or  has 
occurred   after   he   was   in   default   to   restore   the  deposit.      Uranie 
Berard  v.  Vincent  Boagni,  30  La.  1125. 

1621.  Special  deposit  of  bonds  was  left  by  a  customer  with  the 
cashier  of  a  national  bank  for  safe  keeping,  with  the  knowledge  of  its 
•directors,  and  the  bank  gave  a  receipt  therefor.     The  bonds  were  sub- 
sequently stolen  and  the  bank  offered  no  satisfactory  explanation  of  the 
manner  of  the  theft.     Held,  that  there  was  sufficient  evidence  of  gross 
negligence  to  be  submitted  to  the  jury.     Bank  v.  Graham,  85  Penn. 
St.  91. 

1622.  The  rule  that  where  money  has  been  deposited  with  a  bank, 
the  bank  where  the  deposit  is  made  becomes  the  owner  of  the  money 
And  consequently  a  debtor  for  the  amount,  and  under  obligation  to  pay 
on  demand,  not  the  identical  money  received,  but  a  sum  equal  in  legal 
value,  does  not  apply  where  the  thing  deposited  is  not  money,  but  a 
commodity,  such  as  confederate  notes,  and  it  was  agreed  that  the  col- 
lections should  be  made  in  like  notes.     Planters'  Bank  v.  Union  Bank, 
16  Wall.  U.  S.  483. 

1623.  What  is  sufficient  evidence  of  demand  and  refusal  to  author- 
ize submission  of  question  to  jury.      Tuttle  v.  Hazard,  (Mem.)  86 
N.  Y.  628. 

1624.  A  depositor  in  a  bank,  who  sends  his  pass  book  to  be  written 
up  and  receives  it  back  with  entries  of  credits  and  debits  and  his  paid 
checks  as  vouchers  for  the  latter,  is  bound  personally  or  by  an  author- 
ized  agent,  and  with   due   diligence  to  examine  the  pass  book  and 
vouchers,  and  to  report  to  the  bank,  without  unreasonable  delay,  any 


OF  STANDARD   DECISIONS. 

errors  which  may  be  discovered  in  them  ;  and  if  he  fails  to  do  so,  and 
if  the  bank  is  thereby  misled  to  its  prejudice  he  cannot  afterwards  dis- 
pute the  correctness  of  the  balance  shown  by  the  pass  book.  Leather 
Manufacturers'  Bank  v.  Morgan,  117  U.  S.  96. 

1625.  If  a  depositor  in  a  bank  delegates  to  a  clerk  the  examina- 
tion of  his  written  up  pass  book  and  paid  checks  returned  therewith  as 
vouchers,  without  proper  supervision  of  the  clerk's  conduct  in  the  ex- 
amination, he  does  not  so  discharge  his  duty  to  the  bank  as  to  protect 
himself  from  loss,  if  it  turns  out  tbat  without  his  knowledge  the  clerk 
committed  forgery  in  raising  the  amount  of  some  of  those  checks,  and 
thereby  mislead  the  bank  to  its  prejudice,  in  spite  of  due  care  on  the 
part  of  its  officers.  Ibid. 


DEMAND. 

1626.  Where,  by  the  terms  of  a  contract  between  vendor  and 
vendee,  the  purchase-price  of  merchandise  was  to  be  paid  in  cash  or 
the  notes  of  third  parties,  at  the  option  of  the  vendee,  the  indebted- 
ness of  the  vendee  accrued  upon  the  delivery  of  the  merchandise,  and  a 
-demand  for  the  notes  need  not  be  shown  to  entitle  the  vendor  to  a 
right  of  action  thereon.     The  Davis  Sewing  Machine  Co.  v.  McGinnis, 
•et  al.,  45  Iowa,  538. 

1627.  To  enable  a  party  to  recover  in  an  action  upon  a  due  bill 
payable  in  specific  property,  no  time  being  mentioned,  a  demand  is 
necessary.     Otherwise  when  time  and  place  are  specified.     A  personal 
•demand  elsewhere  than  at  the  place  designated  in  a  due  bill  for  the  de- 
livery of  personal  property  is  good,  unless  met  by  an  offer  to  pay  at 
the  designated  place.     A  right  of  action,  which  has  accrued  by  reason 
of  a  refusal  upon  demand  to  deliver  specific  articles  of  property  ac- 
cording to  contract  is  waived  by  a  subsequent  demand  if  the  party 
upon  whom  the  demand  is  made  indicates  a  readiness  to  deliver  ac- 
cording to  contract.      Widner  v.  Walsh,  3  Colo.  548. 

1628.  Where  one  receives  from  a  municipal  corporation  warrants 
drawn  upon  its  treasurer,  presentation  to  that  officer,  or  the  allegation 
in  the  declaration  of  facts  which  will  excuse  presentation,  is  necessary 
before  an  action  can  be  maintained  on  the  warrants.     City  of  Central 
v.  Wilcoxen,  3  Colo.  566. 

1629.  A  mere  demand  for  the  payment  of  the  balance  of  purchase- 
money  cannot  be  regarded  as  an  acquiescence  in  the  wrongful  delivery 
of  an  escrow,  and  as  depriving  the  vendor  of  his  right  to  rescind. 
Hamill  v.  Thompson,  etal.,  3  Colo.  518. 

1630.  The  obligation  of  a  part}'  to  refund  money,  voluntarily  paid 
to  him  by  mistake,  can  arise  only  after  notification  of  the  mistake, 
and  demand  of  payment.     Southwick  v.  First  Nat.  Bank,  84  N.  Y. 
420. 

1631.  Where  a  demand  is  necessary  it  is  not  excused  by  showing 
that  defendant  would  not  probably  have  complied  if  one  had  been 
made ;  and  it  matters  not  that  defendant,  on  the  trial,  contests  plain- 
tiff's right  to  recover.     Southwick  v.  First  Nat.  Bank,  84  N.  Y.  420. 


MONROE'S  DIGEST 


DEVISE. 

1632.  Under  the  provisions  of  the  Revised  Statutes  (2  R.  S.  57r 
§  5)  declaring  that  ever}'  will  which  in  express  terms  devises  or  in 
other  terms  denotes  an  intent  to  devise  all  the  testator's  real  estate, 
"  shall  be  construed  to  pass  all  the  real  estate  which  he  was  entitled  to- 
devise  at  the  time  of  his  death,"  such  a  will  operates  upon  lands  ac- 
quired after  the  making  of  the  will.  Byrnes  v.  Baer,  86  N.  Y.  210. 


DISCOUNT. 

1633.  The  discount  of  a  draft,  at  legal  interest,  is  not  rendered 
usurious,  by  reason  of  any  intended   lawful  use  of  the  paper  by  the 
party  discounting,  though  he  may  thus  realize  more  than  legal  inter- 
est.    Farmers'  &  Mechanics'  Bank  v.  Parker,  37  N.  Y.  148. 

1634.  Discounting  a  note  at  the  rate  of  seven  per  cent,  is  not 
usury.     Manhattan   Co.  v.  Osgood,  15   Johns.  162;  Bank  of  Utica  v. 
Phillips,  3  Wend.   408 ;    Utica   Ins.    Co.  v.  Bloodgood,  4  Wend.  652  -r 
Kent  v.  Walton,  7   Wend.  N.  Y. ;   Anderson  v.  Schenck,  1  N.  Y.  Leg. 
Obs.  107  ;  Marvine  v.  Hymers,  12  N.  Y.  223. 

1635.  In  taking  interest  in  advance,  in  discounting  a  note,  it  is- 
lawful  to  include  the  three  days  of  grace  in  the  computation.     Bank 
of  Utica  v.  Wager,  2  Cow.  N.  Y.  712. 

1636.  If  a  bank,  on  discounting  a  bill,  at  the  request  of  the  partyr 
give  a  certificate  of  deposit,  pajrable  at  a  future  day,  it  is  not  usury. 
Knox  v.  Goodwin,  25   Wend.   643  ;    Cayuga    County   Bank  v.  Huntr 
N.  Y.  2  Hill,  N.  Y.  635. 

163T.  If  a  person  give  his  creditor  a  note  for  part  of  the  debt,, 
which  is  discounted  at  more  than  legal  interest,  he  cannot  plead  usury 
to  an  action  on  it.  Handy  v.  Empie,  N.  Y.  1  How.  Pr.  46. 

1638.  The  purchase  of  one's  note  at  a  discount  is  not  usurious. 
Staley  v.  Kneeland,  Clarke,  Ch.  N.  Y.  30. 

1639.  Ante-dating  a  note,  bearing  interest,  as  of  a  date  when  the 
money  was  due  on  the  contract,  does  not  render  the  note  usurious^ 
Powell  v.  Jones,  44  Barb.  N.  Y.  521. 


DIVIDENDS  PLEDGED. 

1640.  A  bank  has  the  right  to  hold  a  cash  dividend  as  pledged  for 
the  indebtedness  of  the  shareholder  to  the  bank.  A  bank  had  sued  an 
overdue  note  of  a  stockholder,  discounted  by  the  bank,  and  attached 
his  shares.  During  the  pendency  of  this  action,  the  stockholder  de- 
manded payment  of  the  dividends  declared  upon  the  attached  shares, 
which  was  refused.  He  subsequently  settled  that  suit,  and  then  with- 
out renewing  his  demand  brought  the  present  action  for  his  dividend. 
Held,  that  it  could  not  be  maintained.  Hagar  v.  Union  Nat.  Bank,  63- 
Me.  509. 


OP   STANDARD   DECISIONS.  225 


EMBEZZLEMENT. 

1641.  In  order  to  sustain  an  indictment,  under  the  statute  relating 
to  embezzlements  (2  R.  S.  678,  §  59,  as  amended  by  chapter  207,  Laws 
of  1874),  against  the  treasurer  of  a  corporation,  for  the  alleged  conver- 
sion to  his  own  use  of  money  of  the  corporation,  it  must  be  made  to 
appear  that  the  money  in  question  came  into  his  possession  or  under 
his  care  by  virtue  of  his  office.     Bartow  v.  People,  78  N.  Y.  377. 

1642.  Where  an  indorsement  of  a  negotiable  bill  purports  to  pass 
the  title  thereto  from  the  ijidorser,  and  to  divest  him  of  all  beneficial 
interest  therein,  a  consideration  for  the  transfer  is  presumed,  and  the 
burden  of  proving  want  of  consideration  rests  upon  the  party  alleging 
it.     Hook  v.  Pratt,  78  N.  Y.  371. 

1643.  The  restrictive  indorsements  which  are  held  to  negative  the 
presumption  of  a  consideration,  are  such  as  indicate  that  they  are  not 
intended  to  pass  title,  but  merely  to  enable  the  indorsee  to  collect  for 
the  benefit  of  the  indorser.     An   indorsement  to  one  person  for  the 
benefit  of  another  affords  no  such  indication.     Hook  v.  Pratt,  78  N.  Y. 
371. 


ENDORSEMENTS. 

1644.  The  general  rule  in  this  State  and  elsewhere  is,  that  the  in- 
dorsement  of  a  negotiable  note  or  bill  before  maturity  by  the  payee, 
creates  an  absolute  warranty  to  the  immediate  and  subsequent  indorse- 
ment ;  among  other  things,  that  the  maker  or  acceptor  will  pay  it  on 
due  presentment  when  it  is  due,  but  that  if  he  does  not,  the  indorser 
will  pay  it  if  due  notice  is  given  him  of  such  dishonor ;  and  evidence 
of  a  contemporaneous  or  subsequent  parol  contract  varying  or  con- 
tradicting such  indorsement  as  to  any  of  its  terms  is  not  admissible. 
First  Nat.  Bank  of  St.  Paul  v.  Nat.   Marine  Hank  of  St.  Paul,  20 
Minn.  63. 

1645.  An  indorsement  on  a  promissory  note,  "  assigned  to  "  A., 
made  in  the  name  of  the  payee,  is  one  upon  which  the  latter  is  liable 
prima  facie,  as  indorser.     Henderson  v.  Ackelmire,  59  Ind.  540. 

1646.  Where  the  indorser  of  a  note  was  released  from  liability  by 
the  fact  that  the   note  was  not  protested,  but  afterward  went  to  the 
lawyer  of  the  holder  and  promised  to  pay  it,  and  again  subsequently 
sent  a  letter  to  the  same  effect,  which  was  destroyed, — Held,  on  action 
brought,  that  his  promise  to  the  lawyer  was  as  binding  as  if  made  to 
the  holder,  and,  moreover,  could  be  proved  by  parol  evidence.     John- 
son v.  Geoffrion,  7  L.  C.  J.  125 ;  13  L.  C.  R.  161  ;  C.  C.  1863. 

164T.  The  fact  of  an  indorser  having  been  appointed  to  a  temporary 
office  in  a  place  where  he  went  alone,  leaving  his  family  for  some  time 
afterward  in  the  domicile  occupied  by  him  at  the  time  of  his  appoint- 
ment, did  not  effect  a  change  of  domicile,  and  notice  of  protest  left  at 
such  domicile  was  good  and  sufficient  to  render  him  liable  for  the  pay- 
ment of  the  note.  Ryan,  et  al  v.  Malo,  12  L.  C.  R.  8  Q.  B.  1861 ;  82  & 
2328  C.  C. 

15 


226  MONROE'S  DIGEST 

1648.  If  the  indorser  desires  the  benefit  of  any  security  held  by  the 
creditor,  he  must  first  pay  the  paper,  assert  his  right  of  subrogation, 
and  himself  inforce  the  security.     First  Nat.  Bank  v.  Wood,  71  N.  Y. 
405. 

1649.  The  fact  that  other  parties  occupy  the  same  position,  and 
are  interested  with  him  in  inforcing  the  security,  is  immaterial.     He  is 
only  entitled  to  such  benefit  as  is  conferred  by  the  security  as  it  is,  and 
beyond  this,  has  no  valid  claim  for  protection.     Ibid. 

1650.  The  holder  of  a  note  to  order  under  protest,  who  has  re- 
ceived an  account  from  the  maker  and  another  note  as  security  for  the 
first,  does  not  lose  his  recourse  against  the  indorsers  of  the  first  note 
who  have  given  their  assent  to  the  transaction,  notwithstanding  the  in- 
solvency of  the  maker  of  the  first  note.      Woodbury  v.  Garth,  9  L.  C. 
R.  Eng.  438,  Q.  B.  1858. 

1651.  A  draft,  drawn  by  a  New  Jersey  bank  upon  a  New  York 
bank,  which  had  been  altered  by  some  unknown  person  by  changing 
the  date  and  name  of  payee,  and  raising  the  amount,  was  presented  at 
plaintiff's  banking-house  by  a  stranger,  who  applied  for  the  money 
thereon.     P.,  defendant's  testator,  came  to  the  bank  with  the  stranger 
and  put  his  name  upon  the  draft  "  as  an  indorser."     Plaintiff  pur- 
chased the  draft  and  paid  the  amount  of  it  to  the  stranger.     The  draft 
•was  sent  by  plaintiff  to  its  correspondent  in  New  York,  and  it  was 
paid  by  the  drawee,  but  upon  discovery  of  the  forgery,  the  money  was 
refunded.     In  an  action  upon  the  indorsement  it  was  not  denied  that 
the  person  presenting  the  draft  was  the  payee  appearing  upon  its  face 
at  that  time,  and  there  was  no  finding  that  he  was  not.     Held,  that  as 
P.  was,  to  the  knowledge  of  plaintiff,  simply  an  accommodation  in- 
dorser, his  indorsement  was  not  a  guaranty  of  the  genuineness  of  the 
draft;  that  the  fact  of  the  forgery  could  not  be  presumed  to  be  within 
Ms  knowledge  ;  that  upon  the  facts  found  he  had  all  the  rights  and 
privileges  of  an  indorser  and  was  subject  only  to  the  obligations  that 
relation  imposed ;  and,  as  he  was  not  charged  according  to  the  law- 
merchant,  i.  e.,  by  presentation  for  payment,  refusal  and  notice  of 
non-payment,  he  was  not  liable.     Sus.    Vol.  Bank  v.  Loomis,  85  N. 
Y.  207. 

1652.  Giving  a  definite  extension  of  time  to  the  maker  of  a  note 
upon  consideration  of  interest  paid  in  advance  by  him  without  the 
assent  of  an  indorser  will   release  him  from  liabilitj'.      Siebeneck  v. 
Anchor  Savings  Bank,  111  Penn.  187  ;  Lime  Roch  Bank  v.  Mallett.  34 
Me  547. 

1653.  The  making  and  dating  of  a  promissory  note  at  a  particular 
place  is  not  equivalent  to  making  it  payable  there,  nor  does  it  super- 
sede the  necessity  for  presentment  and  demand  at  the  residence  or 
place  of  business  of  the  maker  if  it  be  known,  or  if  by  due  diligence  in 
making  inquiry   it  could  be  ascertained.     Oxnara   v.    Varnum,   111 
Penn.  193  ;  Duryee  v.  Dennison,  5  Johns.  N.  Y.  248. 

1654.  A  promise  to  pay,  by  the  indorser,  after  default  of  payment 
by  the  maker,  not  only  dispenses  with   proof  of  presentment  and  no- 
tice, but  throws  on  the  defendant  the  burden  of  proving  laches  of  the 
holder,  and  that  the  defendant  was  ignorant  of  the  facts  at  the  making 
of  the  promise.     Ibid  ;  also,  Allen  v.  Bratton,  47  Miss.  129  ;    Woodruff 
v.  Hill,  111  Mass.  310. 


OF   STANDARD   DECISIONS.  227 

1655.  An  indorser  of  a  promissory  note  is  not  estopped  from  set- 
ting up  usury  as  a  defence  thereto  by  a  certificate  or  affidavit  made  by 
him,  to  the  effect  that  the  note  is  business  paper,  given  for  a  full  con- 
sideration and  subject  to  no  defence  of  usury  or  otherwise,  where  it  ap- 
pears that  where  the  note  was  transferred  to  the  holder  he  had  knowl- 
edge  that   it   was   indorsed    for   the   accommodation   of   the   maker, 
.and  had  its  inception  when  so  transferred.     Lewis  v.  Barton,  106  N. 
Y.  70. 

1656.  Indorser   on   note   receiving    mortgage  as  security,  being 
obliged  to   pay  note,  can  assign   the  mortgage  and  paid  note,  and 
Assignee  can  recover.     Bendey  v.  Townsend,  109  U.  S.  665. 

165T.  When  the  last  indorser  has  paid  the  amount  of  a  judgment 
on  the  note,  with  interest  and  costs  obtained  at  the  suit  of  the  holder, 
— Held,  such  payment  being  made  subsequently  to  the  institution  of 
another  action  on  the  same  note  by  the  same  holder  against  the  maker 
and  payee,  such  indorser  has  a  right  to  intervene  in  the  latter  action, 
and  obtain  a  judgment  in  his  own  favor  against  the  maker  and  payee 
of  a  note.  Mitchell,  et  al.  v.  Brown,  et  al.  &  Baillie,  15  L.  C.  R.  425, 
•C.  C.  1865  Eng. 

1658.  An  accommodation  indorser  of  promissory  notes  discounted 
by  a  bank  cannot,  in  the  absence  of  any  special  equities,  require  the 
bank  first,  to  resort  to  a  mortgage  on  real  estate  held  by  its  collateral 
before  maintaining  an  action  upon  the  indorsement.     The  fact  that  the 
avails  of  the  note  are  passed  to  the  credit  of  the  maker  to  take  up  other 
paper,  does  not  affect  the  rights  of  the  bank  in  this  particular.     First 
Nat.  Bank    v.  Wood,  71  N.  Y.  405. 

1659.  When  an  indorser  of  a  promissory  note,  who  has  been  dis- 
charged from  liability  by  failure  of  the  holder  to  make  demand  and 
give  notice  of  non-payment,  with  full  notice  of  the  laches  of  the  holder, 
unequivocally  assents  to  continue  his  liability  as  though  due  protest 
.had  been  made,  he  waives  his  right  to  object,  and  stands  in  the  same 
position  as  if  the  proper  steps  had  been  taken  to  charge  him.     Ross  v. 
Hurd<  71  N.  Y.  14. 

1660.  In  an  action  by  the  bearer,  who  was  also  the  maker,  against 
an  indorser,  the  latter  pleaded  that  he  indorsed -the  note  simply  as  an 
accommodation,  and  on  the  understanding  that  the  plaintiff  should 
place  his  name  above  his  (the  defendant's)  as  second  indorser.     On 
appeal  from  a  judgment  against  the  defendant, — Held,  reversing  the 

judgment  of  the  court  below,  that  the  order  of  signature  by  indorse- 
ment of  a  note  was  a  mere  presumption  of  the  undertaking  of  the 
indorsers  with  respect  to  one  another,  and  that  this  presumption  could 
be  destroyed  by  proof  of  a  contrary  understanding,  and  that,  accord- 
ingl}-,  in  the  case  submitted,  the  indorsement  made  by  one  of  the  in- 
•dorsers,  with  the  express  condition  that  such  indorsement  would  be 
preceded  by  the  indorsement  of  a  third  party,  who  was  made  acquainted 
by  the  bearer  of  the  note  with  the  conditions  of  the  indorsement,  could 
not  give  to  such  third  party  a  right  of  action  against  the  indorser,  the 
bearer  of  a  note  being  considered  in  such  case  the  agent  of  the  in- 
dorser. Day  v.  Sculthorpe,  11  L.  C.  R.  269,  Q.  B.  1861  Eng. 

1661.  A  bill  of  exchange  drawn  in  England  and  payable  in  Spain, 
was   indorsed  in  England   by  the  defendant   to  the  plaintiff,  who  in- 
dorsed it  to  M.,  residing  in  Spain.     Acceptance  having  been  refused,  a 


228  MONROE'S  DIGEST 

delay  of  twelve  days  occurred  before  M.  wrote  to  inform  the  plaintiff* 
of  the  dishonor.  On  receipt  from  M.  of  the  notice  of  dishonor,  tbe> 
plaintiff  gave  immediate  notice  to  the  defendant.  No  notice  of  dis- 
honor by  non-acceptance  is  required  by  the  law  of  Spain.  Held,  that 
the  plaintiff  was  entitled  to  recover  the  amount  of  the  bill.  Home  v, 
Rouquette,  3  Eng.  Law.  Rep.,  Queen's  Bench  Div.  C.  A.  514. 

1662.  Indorser  of  a  promissory  note  after  its  maturity  and  his- 
liability  on  it  has  become  fixed,  joined  with  the  maker  of  the  note  in  a 
bond  giving  further  time,  at  his  request.     Held,  that  he  was  surety  on 
the  bond  and  not  a  principal.     Merriken  v.  Godwin,  et  al.,  2  Del.  236. 

1663.  In  an  action  against  an  indorser,  who  was  a  banker,  plain- 
tiff's evidence  was  to  the  effect,  that,  prior  to  the  maturity  of  the  noter. 
plaintiff  and  defendant  had  some  conversation  in  regard  to  extension 
of  time,  but  no  arrangement  was  made  ;  after  the  discharge  of  the  de- 
fendant by  failure  of  demand  and  notice,  plaintiff  and  K.,  the  maker,, 
went  to  defendant's  bank  to  arrange  an  extension  of  time.     K.  asked 
plaintiff  if  he  desired  a  new  note.     Plaintiff  replied  that  if  the  parties 
agreed  he  would  let  the  note  stand;  defendant  said,  "then   I  waive 
protest,"  and  plaintiff  thereupon  agreed  to  an  extension.     Held,  that 
the  evidence  was  sufficient  to  authorize  a  finding  that  the  defendant,, 
with  knowledge,  assented  to  continue  his  liability  ;  and  that  a  non-suit 
was  error.     Ross  v.  Hurd,  71  N.  Y.  14. 

1664.  In  an  action  against  an  indorser,-^- Held,  that  the  defendant 
had  a  right  to  set  up  in  compensation  against  the  holder  all  sums  of 
money,  which  the  holder  had  been  paid,  by,  or  in  which  he  had  become 
indebted  to  the  maker  since  the  protest  of  the  note,  and  that  the  salary 
of  a  bank  officer  paid  by  quarterly  instalments,  ought  in  this  way  be 
set  up  against  the  bank  by  an  accommodation  indorser.     The  Quebec 
Bank  v.  Molson,  1  L.  Canada,  R.  116,  1851. 

1665.  The  transfer  of  a  note  by  indorsement  carries  with  it  the 
mortgage  and  frees  the  mortgage  in  the  hands  of  a  good  faith  holder, 
like  the  note,  of  any  equities  between  the  original  parties.      Updegraft 
v.  Edwards,  et  al.,  45  Iowa,  513. 

1666.  Waiver   of  demand   and   notice   may   be   made   by   parol. 
Smith  v.  Lownsdale,  6  Oregon,  78. 

1667.  The  indorsee  cannot  maintain  suit  against  the  indorser  or 
assignor  of  paper  not  commercial,  where  the  amount  exceeds  fifty  dol- 
lars, without  averring  and  proving  suit  against  the  maker  to  the  first 
term,  prosecuted  to  judgment  and  return  of  "  no  property,"  or  some 
sufficient  excuse  for  not  having  done  so.     All  contracts  for  pa}' men t 
of  money,  except  instruments  governed  by  the  commercial   law,  are 
subject  in  the  hands  of  the  assignee  to  all  payments,  discounts,  and 
set-off  made  or  had  prior  to  notice  of  assignment,  and  to  any  defence 
which  could  have  been  made  against  the  assignor  or  indorser.     Cook 
v.  Citizens*  Mutual  Ins.  Co.,  53  Ala.  37. 

1668.  A  promise  to  pay,  made  after  maturity,  with  knowledge  that 
demand  and  notice  of  non-payment  had  not  been  made,  removes  the 
effect  of  any  negligence  in  making  demand  or  in  giving  notice.     An 
indorser  who  has  taken  sufficient  security  to  protect  himself  against 
possible  loss  waives  his  legal  right  to  require  proof  of  demand  and 
notice.      Smith  v.  Lownsdale,  6  Oregon,  78. 

1669.  Indorser  of  a  promissory  note  is  a  competent  witness  to* 


OF   STANDARD   DECISIONS.  229 

prove  an  agreement  in  writing  made  with  its  bolder  at  the  time  of  his 
indorsement,  that  he  shall  not  be  held  liable  thereon,  where  the  paper 
has  not  afterwards  been  put  into  circulation,  but  is  held  by  the  party 
to  whom  the  indorsement  was  made.  Davis  \.  Brown,  94  U.  S.  423  ; 
Bank  of  United  States  v.  Dunn,  6  Pet.  51,  explained  and  qualified. 

1670.  Delay  granted  to  the   maker  of  a  promissory  note  by  the 
holder,  without   the  knowledge  of  the  indorser,  does  not  discharge  the 
latter.     Mastsue  v.  Crebassa,  7  L.  C.  J.  211,  S.  C. ;  1961  C.  C.  Eng. 

1671.  If  the  indorser   of  a   promissory   note,  after  it   falls    clue, 
promises  to  pay  the  same,  with  a  knowledge  that  the  holder  has  failed 
to   give   notice   of  non-payment   and   make  demand  of  payment,  the 
promise  dispenses  with  the  necessity  of  demand  and  notice.     A  state- 
ment  made  by  the  indorser  of  a  promissory  note,  after  it  falls  due,  to 
the  holder,  that  he  is  responsible  for  the  note,  is  in  effect  a  promise  to 
pay  it.     If  the  payee  of  a  promissory  note  indorses  it  in  blank,  and 
•delivers  it  to  another,  the  note  becomes  payable  to  the  transferee,  not 
.as  indorsee,  but  as  bearer.     The  fact  that  the  payee  indorses  a  note  in 
blank,  and  delivers  it  to  a  person  who  afterwards  reassigns  it  to  him 
without  recourse,  and  that  the  payee  then  delivers  it  to  another  per- 
son, do  not  change  the  rule.     Curtis  v.  Sprague,  51  Cal.  239. 

1672.  Whenever  a  negotiable  promissory  note  is  drawn  up  and  is 
signed  by  the  maker,  and  is  then  indorsed  in  blank,  first  by  the  payee 
And  then   by  a   third  person,  and  the  note  is  then  delivered  by  the 
maker  for  a  sufficient  consideration  to  still  another  person,  who  thereby 
becomes  the  holder  thereof,  the  presumption  in  such  case  should  be, 
and  is,  that  the  payee  and  said  third  person  intended  to  assume,  and 
did  assume,  all  the  rights  and  privileges,  as  well  as  all  the  obligations 
and  liabilities,  usually  assumed  by  indorsers  of  negotiable  instruments. 
When  a  note  is  executed,  indorsed  and  delivered  in  the  foregoing  man- 
ner, the  indorser  will  be  discharged  unless  due  demand  of  payment  is 
made,  and  due  notice  of  non-payment  given  to  the  indorsers.     Brad- 
ford v.  Pauly,  et  a/.,  18  Kansas,  216. 

1673.  A  stranger  who  indorses  negotiable  paper  at  the  time  it  is 
made,  is  prima  facie  liable  to  the  payee  as  original  promissor  or  as 
guarantor,  as  the  payee  may  at  any  time  elect.     But  it  may  be  shown 
by  parol  evidence  that  he  intended  to  bind  himself  only  as  guarantor, 
or  even  as  second  indorser ;  and  if  so  shown  by  such  evidence,  he  can 
only  be  held  bound  according  to  the  original  understanding.     Burton 
&  Go.  v.  Hansford,  et  aZ.,  10  West  Va.  470. 

1674.  After  a  note  under  seal  from  Frow  to  Wilson  was  due,  at 
the  request  of  Frow,  Wilson  agreed  to  continue  it,  if  Frow  would  give 
security.     Belford  agreed  with   Wilson  to  become  surety,  and  there 
being  no  room  at  the  bottom  of  the  note  to  sign  his  name,  Belford 
said  it  would  do  to  sign  on  the  back,  and  in  signing  thus,  said  to  Wil- 
son, he  understood  he  was  "  going  on  the  note  as  security."     Held, 
this  was  within   the  Statute   of  Frauds,  and  Belford  was  not  liable. 
The  indorsement,  the  testimony  being  parol,  did  not  take  it  out  of  the 
statute.     Indorsement  in  blank  of  notes  not  negotiable  is  not  evidence 
of  a  written  promise  to  pay  under  the  statute.      Wilson  v.  Martin,  74 
Penn.  St.  159. 

1675.  The  omission  to  give  an  indorser  notice  of  the  non-payment 
of  previous  instalments,  as  they  fell  due  on  a  promissory  note  does 


230  MONROE'S  DIGEST 

not  effect  his  liability  for  a  later  instalment,  of  the  non-payment  of 
which  he  has  been  duly  notified.  Notice  to  the  indorser  of  a  promis- 
sory note  of  a  demand  made  upon  the  maker  for  an  instalment  then 
due  and  for  the  interest  due  upon  the  note  (some  of  the  previous  instal- 
ments and  interest  being  still  unpaid)  and  of  his  non-payment,  is 
sufficient  to  charge  the  indorser,  and  is  not  invalidated  by  adding  that 
the  holder  looks  to  him  for  the  payment  of  the  instalment  and  of  the- 
interest  due  upon  the  note.  In  an  action  against  the  indorser  of  a, 
promissory  note  to  recover  an  instalment  due  thereon,  it  appeared 
that  when  previous  instalments  had  become  due,  of  the  non-payment 
of  which  the  indorser  had  not  been  duly  notified,  the  indorsee  had  ap- 
plied the  proceeds  of  a  mortgage,  given  by  the  maker  to  secure  the 
payment  of  the  note,  to  such  instalments.  Held,  that  the  indorsee- 
had  the  right  so  to  apply  them.  Fitchburg  Mutual  Fire  Ins.  Co.  v. 
Davis,  121  Mass.  121. 

1676.  Where  the  maker  of  a  promissory  note  furnishes  to  the 
second  indorser  money  to  pay  the  note,  a  trust  is  created  in  favor  of 
the  first  indorser,  as  well  as  the  holder,  to  have  the  fund  applied  in- 
payment   of  the   note.     Where   two   persons   successively  indorse   a 
promissory  note  for  the  accommodation  of  the  maker,  and  the  maker 
furnishes  to  the  second  indorser  at  the  time  of  his  indorsement,  with 
the  means  to  pay  the  note,  without  the  knowledge  of  the  first  indorserr 
the  maker  and  second  indorser  have  a  right  to  subsequently  agree  that 
the  means  shall  be  applied  to  another  purpose ;  but  if  the  second  in- 
dorser promises  the  first  that  such  means  shall  be  applied  to  the  pay- 
ment of  the  note,  and  thereby  induce  him  to  be  inactive,  which  results 
to  his  injury,  such  promise  creates  an  equity  in  favor  of  the  first  in- 
dorser which  will  sustain  an  action.     Price  v.  Trusdell,  28  N.  J.  Eq.  20, 

1677.  The  indorsee  of  a  negotiable  bill  or  note,  in  the  absence  of 
proof  of  fraud,  is  presumed  to  be  a  bona  fide  holder  for  value — this- 
presumption  is  not  repelled  merely  by  proof  that  the  paper  as  between 
the  immediate  parties  was  without   consideration,  and  was   rn/ide,  in- 
dorsed or  accepted  by  one  for  the  sole  accommodation  of  the  other. 
Where,  therefore,  in  an  action  by  an  indorsee  before  maturity  against' 
the  acceptors  of  a  bill,  the  defence  was  that  the  acceptance  was  with- 
out consideration  of  the  drawer,  and  that  it  was  discounted  by  plain- 
tiffs for  the  drawer  at  a  usurious  rate  of  interest,  held,  that  the  burden 
•was  upon  defendants  to  show  the  amount  paid   by  plaintiffs  for  the 
bill,  and  in  the  absence  of  any  evidence  upon  the  subject,  that  plain- 
tiffs were  entitled  to  recover.     Harger  v.  Worrall,  69  N.  Y.  370. 

1678.  Notice  of  dishonor  to  indorser,  certificate  of  notary,  in  con- 
nection with  his  testimony  that  it  is  genuine,  and  that,  though  he  has 
no  recollection  of  the  facts  stated  therein,  he  is  satisfied  of  their  truth, 
because  he  would  not  have  certified  them  had  he  not  been  convinced  of 
their  truth  at  the  time,  admissible  to  establish,  notice,  mail  used  as 
means  of  conveying,  and  it  is   in  evidence  that  notice  did  not  in  fact 
reach  indorser,  plaintiff  must  show  that  notices  were  properly  directed, 
stamped,  etc.     Evidence  that  notary  "  served  indorsers  with  notice  "  by 
depositing  said  notices  in  the  post  office,  in  the  city  of  Atlanta,  with 
no  statement  as  to  direction,  payment  of  postage,  etc.,  insufficient 
•where  indorsers  testify  that  they  did  not  receive  notice.     Allen  &  Co, 
v.  Georgia  National  Bank,  60  Ga.  347. 


OF  STANDARD   DECISIONS.  231 

1679.  Agreements  of  indorsee  with  a  stranger  to  give  time  to  the 
acceptor  does  not  discharge  the  maker.     Frazer  v.  Jordan,  XC.  ii.  303  ; 
8  C.  &  B.  303  (Eng.  Com.  Law.) 

1680.  That  where  a  party  who  is  a  stranger  to  the  note  indorses 
the  name  before  delivery,  the  law  does  not  define  the  character  of  the 
contract  or  obligation  created  by  such  indorsement,  and,  therefore, 
parol  evidence  will  be  received  to  determine  what  the  contract  was — 
whether  that  of  a  guarantor  or  maker — and  that  the  contract  may  not, 
because  of  its  ambiguity,  be  defeated ;  and  whereas,  in  this  case,  the 
law  defines  the  nature  of  the  contract,  and  the  manner  in  which  the  in- 
dorser  may  be  held  by  proper  legal  steps,  the  court  will  not  receive 
parol  evidence  to  prove  another  and  different  contract  from  that  defined 
bylaw.     Ibid;  also,  Levering  v.  Washington,  3  Minn.  323;  Kern  y. 

Von  Phul,  7  Minn.  426 ;    First   National  Bank  v.  National  Marine 
Bank,  20  Minn.  63. 

1681.  Where  indorsee  of  a  bill  of  exchange  in  sets  alleges  loss  in 
transmission  for  acceptance,  and  demand  for  other  sets  from  prior  in- 
dorser  not  immediate  as  to  him,  and  also  alleges  the  non-deliver}-  by 
said  indorsee  and  consequent  loss,  he  cannot  recover.     Such  indorsee  is 
bound  to  apply  either  to  the  drawer  or  his  immediate  indorser.      Non 
constat  that  if  he  had  applied  to  them  there  would  have  been  a  loss. 
Pinard  v.  Klockmann,  CX.  iii.  388 ;  3  B.  &  S.  388  (Eng.  Com.  Law.) 

1682.  An  indorser  of  a  promissory  note,  even  though  it  be  an  ac- 
commodation note,  is  not  one ;  but  is  a  principal  debtor  if  the  note  be 
not  paid  and  proper  steps  have  been  taken  to  fix  his  liability.     Ross  v. 
Jones,  22  Wallace,  (U.  S.)  576. 

1683.  To  charge  an  indorser  of  a  note  as  maker,  it  is  necessary  to 
show  specifically  that  he  put  his  name  upon  the  back  of  the  note  before 
delivery  to  the  payee.     Best  v.  Hoppie,  3  Colo.  137. 

1684.  It  being  necessary  for  the  payee  to  indorse  the  note  in  order 
to  make  it  negotiable  paper,  he  must  be  treated  as  first  indorser  with- 
out regard  to  the  time  of  his  indorsement  or  the  locality  of  his  name, 
on   the  note.     A  second  indorser  may  maintain  an  action  against  the 
first  for  money  paid  on  the  note.     Cogswell  v.  Hayden,  5  Oregon,  22. 

1685.  The  indorser  of  a  promissory  note  after  it  falls  due,  with  a 
contract,  and  as  additional  security  to  prevent  legal  proceedings  from 
being  taken  against  the  payee  and  indorser,  is  that  of  a  grantor,  and, 
even  if  based  on  a  valid  consideration,  is  fatally  defective,  unless  the 
writing  express  the  consideration.     Crooks  v.  Tully,  50  Cal.  254. 

1686.  The  guarantor  of  a  promissory  note  is  entitled  to  notice  of 
non-payment.     Ibid. 

168*7.  Indorsee  sold  a  negotiable  promissory  note,  and  indorsed  it 
without  recourse.  Held  an  implied  warranty  that  the  note  was  valid. 
Hannum  v.  Richardson,  48  Vt.  508. 

1688.  The  indorser  of  a  promissory  note,  though  fixed  in  his  lia- 
bility, by  protest,  is  not  entitled,  as  a  creditor,  to  a  share  of  the  estate 
of  the  maker  under  an  assignment  for  the  benefit  of  creditors.  Such 
an  indorser  is  entitled  only  to  be  reimbursed  payments  actually  made 
by  him.  The  holder  of  the  note  can  claim  under  the  equity  of  the  in- 
dorser, out  of  the  assigned  estate,  only  to  the  amount  of  payments  so- 
made  by  the  indorser.  Farmer's  Bank  v.  Gilpin,  et  al.,  1  Del.  Chan- 
cery, 409. 


232  MONROE'S  DIGEST 

i 

1689.  The  names  of  the  payees  appeared  on  the  back  of  a  note  in 
the  usual  position  of  the  first  indorser,  about  three  inches  from  the  left 
end,  and  that  of  the  defendant  in  the  opposite  direction,  about  the  same 
distance  from  the  right  end  of  the  note,  so  that  the  latter  with  refer- 
ence to  the  former  may  be  said  to  have  been  inverted.     Held,  that  this 
irregular  indorsement  did  riot  relieve  the  defendant  of  liability,  as  he 
could  have  recourse  against  the  payees.     Arnofs  Adm'r  v.  Symonds, 
85  Penn.  St.  99. 

1690.  Indorsement  upon  a  note,  to  the  effect  that  the  maker  may 
use  the  principal  after  maturity  by  the   payment  of  interest  semi- 
annually,  does  not  release  the  maker  from  the  obligation  of  payment. 

The  Oskaloosa  College  v.  Hickok,  46  Iowa,  237. 

1691.  Upon  a  failure  of  the  maker  to  pa}'  the  interest  according  to 
the  terms  of  the  indorsement,  the  principal  of  the  note  became  due  and 
payable.     The  subsequent  acceptance  of  interest  would  not  entitle  the 
maker  to  an  extension  of  time  of  payment,  the  interest  thus  paid  being 
merely  a  partial  payment  of  the  note.     Ibid. 

1692.  A  person  of  unsound  mind  who  signs  as  surety  a  note  given 
for  an  antecedent  debt,  cannot  be  held  liable  thereon  even  though  the 
person  taking  the  note  had  no  knowledge  that  the  surety's  mind  was 
unsound.      Van  Patton  &  Marks  v.  Beals  &  Hammer,  46  Iowa,  62. 

1693.  Complaint  against  two  defendants  as  joint  makers  of  promis- 
sory note,  payable  at  any  bank  in  Savannah,  one  of  whom  signed  on 
the  face  and  the  other  on  the  back,  unnecessary,  in  order  to  charge  the 
latter,  to  allege  protest  and  notice.     Hardy  v.  White,  60  Ga.  454. 

1694.  A  party  indorsed  a  negotiable  note  for  $500,  for  the  maker's 
accommodation.     The  maker  then,  by  the  use  of  chemicals,  rendered 
the  amount  of  the  note  invisible,  wrote  in  a  larger  amount,  and  pro- 
cured the  note  to  be  discounted  at  a  bank  as  a  note  for  the  larger 
amount.     Before  the  note  came  due,  the  fraud  was  discovered,  and  the 
original  writing  was  restored,  and  the  note  duly  protested,  and  an  ac- 
tion brought  against  the  indorser,  as  on  a  note  for  the  original  amount. 
Held,  that  the  indorser  was  not  liable.     Citizens  Nat.  Bank  v.  Rich- 
mond, 121  Mass.  110. 

1695.  Where  a  joint  and  several  note,  made  by  the  three  defend- 
ants to  the  order  of  plaintiff  and  another  party,  was  by  that  party  in- 
dorsed and  transferred  to  the  plaintiff.     Held,  that  the  plaintiff  alone 
could  bring  suit  on  the  note,  and  that  the  district  court  did  not  err 
in  overruling  a  demurrer  to  plaintiff's  petition,  on  the  ground  that 
"  there  was  a  defect  of  parties  plaintiff."     Began  v.  Jones,  Wyoming  S. 
C.  Reps.  210. 

1696.  An  indorser  of  a  check  given  with  his  knowledge  in  pay- 
ment of  a  gambling  debt,  who  pays  the  check  to  the  holder  upon  non- 
payment by  the  drawee  and  protest,  cannot  recover  therefor,  from  the 
drawer,  or  a  prior  indorser.     A.  having  paid  B.'s  gambling  debt,  A. 
knowing  it  to  be  such  debt,  gives  him  no  right  of  action  against  B. 
for  the  amount  so  paid.     Scollans  v.  Flynn,  120  Mass.  271. 

1697.  The  indorsee  of  a  negotiable  note,  who  takes  it  discharged 
of  the  equities  to  which  it  was  subject  in  the  hands  of  the  payee,  ac- 
quires the  same  right  in  a  mortgage  given  to  secure  it,  which  the 
j>ayee  would  have  had,  if  no  equities  had  ever  existed  against  the  note. 
Linville  v.  Savage,  58  Mo.  248 ;  Logan  v.  Smith,  62  Mo.  455. 


OF   STANDARD   DECISIONS.  233 

1698.  The  transfer  of  a  note  received  by  mortgage  carries  the 
mortgage  with  it,  unless  the  mortgage  has  been  separately  extinguished, 
as  by  a  release  for  instance.     Ibid. 

1699.  The  indorser  of  a  note  will  not  be  held  bound  by  a  fraudu- 
lent alteration  made  subsequently  to  his  indorsement,  unless  through 
negligence;  the  instrument  has  been  so  loosely  drawn  as  to  easily  ad- 
mit of  alteration,  and  in  a  matter  not  calculated  to  place  a  man  of 
ordinary  prudence  on  the  alert.     But  where  no  blank  space  was  left 
unfilled,  and  the  rate  of  interest  was,  after  indorsement  and  without 
the   knowledge  of  the  indorser,  inserted  by  interlineation  in  ink  of  a 
different  color  from  that  employed  in  the  remainder  of  the  note,  it  was 
held   that  the  instrument  upon  its  face  bore  such  indications  as  should 
have  excited  suspicion  and  provoked  inquiry ;  and  that  under  such 
•circumstances  the  indorser  was  not  bound.     Capital  Bank  v.  Arm- 
strong, 62  Mo.  59. 

1700.  The  mere  fact  that  the  alteration  of  a  note  is  not  made 
fraudulently,  nor  for  the  purpose  of  changing  its  legal  effect,  will  not 
•change  the  rule  as  to  the  liability  of  a  prior  indorser.     Ibid. 

1701.  The  defendant  in   1867   indorsed  the  notes  of  C.  for  his  ac- 
commodation to  the  amount  of  $7,000,  and  continued  to  indorse  for 
him  to  the  same  amount,  for  purposes  of  renewal  or  payment,  till  1873. 
In   1869  the  plaintiffs,  a  bank,  discounted  some  of  these  notes  to  the 
amount  of  $5,000  for  C.,  and  continued  a  line  of  discount  of  the  same 
amount  and  upon  the  same  indorsements  till  1873.     At  this  time  C., 
having  received  from  the  defendant  his  indorsement  upon  a  note  of 
$2,000,  the  note  being  in  all  respects  complete,  fraudulently  altered  the 
amount  to  $5,000,  and  procured  its  discount  by  the  plaintiffs,  who  took 
it  without  suspicion,  and  with  the  proceeds  C.  took  up  his  notes  at  the 
plaintiffs'  bank  for  $5,000,  upon  $4,000  of  which  the  defendant  was  in- 
dorser, the  bank  discounting  the  note  for  the  purpose  of  applying  the 
proceeds  in  that  manner.     C.  had  formerly  been  in  the  defendants'  em- 
ployment, and  had  his  entire  confidence ;  and  the  defendant  had  been 
in   the  habit  of  endorsing  paper  sent  to  him  for  that  purpose  by  C., 
without  making  any  entry  of  the  transaction,  and  in  several  instances 
had   indorsed  notes  in  which  the  time  of  payment  was  left  blank. 
Held,  That  the  Court  could  not,  from  all  these  facts,  infer  an  agency 
on   the  part  of  C.  under  which  his  act  in  altering  the  note  would  be 
binding  upon  the  defendant.     Aetna  Bank  v.  Winchester,  43  Conn.  391. 

1702.  That  the  negotiation  of  the  altered  note  to  the  plaintiffs  did 
not  render  the  defendant  liable  on   his  indorsement,  as  an  act  in  the 
apparent  exercise,  and  within  the  apparent  scope,  of  an  agency  on  the 
part  of  C.     Ibid. 

1703.  That  the  principle  that,  where  one  of  two  innocent  persons 
must  suffer  by  a  fraud,  he  who  furnished  the  means  for  committing  the 
fraud  should  bear  the  loss,  had  no  application  to  the  case,  as  the  de- 
fendant, having  delivered  the  note  to  C.  complete,  could  not  be  re- 
garded as  having  furnished  him  the  means  of  committing  the  fraud. 
Ibid. 

1704.  That  the  rule  that  holds  an  indorser  liable,  although  the 
note  is  used  in  a  different  manner  from  that  intended  by  him,  did  not 
apply,  as  in  such  cases  the  contract  is  still  the  genuine  contract  of  the 
indorser.     Ibid. 


234  MONROE'S  DIGEST 

1705.  That  the  defendant  was  not  estopped  by  the  facts  from  de- 
nying his  liability  upon  the  indorsement.     Ibid. 

1706.  The  plaintiffs  indorsed  a  note  at  the  request  and  for  the  ac- 
commodation of  D.,  which  had  been  made  by  another  person  for  D.'s 
accommodation,  and  which  was  first   indorsed  by  him.     At  this  time 
there  was  an  understanding  among  all  the  parties  that  D.  was  to  get 
the  note  discounted  at  a  certain  bank.     He,  however,  was  not  able  to- 
accomplish  this,  and,  without  the  knowledge  of  the  plaintiffs,  deposited 
it  with  the  defendant  as  security  for  a  loan  of  less  amount,  with  an 
agreement  that  he  might  redeem  it  on  paying  the  amount  loaned,  with 
certain  agreed  interest.     In  violation  of  this  agreement  the  defendant 
sold   the  note  to  a  bona  fide  holder  for  full  value ;  and  D.  and  the 
maker  being  insolvent,  the  plaintiffs  were  compelled  to  pay  it  in  an 
action  brought  by  the  plaintiffs   for  damages  caused  to  them  by  the 
fraudulent  conduct  of  the  defendant  in  disposing  of  the  note,  in  which 
it  was  found  that  he  disposed  of  it  to  prevent  D.  from  making  a  set-off" 
of  a  certain  claim  which  he  had  against  him,  it  was  Held,    (1)  That 
the  understanding  between  the  plaintiffs  and  D.,  that  he  would  get  the 
note  discounted  at  a  certain  bank,  could  not,  so  long  as  their  indorse- 
ment was  without  condition,  affect  his  right  to  dispose  of  the  note  in 
any  other  manner.     (2)  That  the,  defendant,  having  become  the  law- 
ful holder  of  the  note,  had  the  right,  so  far  as  the  plaintiffs  were  con- 
cerned, to  dispose  of  it  upon  an}r  terms  that  he  pleased.     (3)  That 
although  in  doing  so  he  violated  his  agreement  with  D.,  and  might 
therefore  be  liable  to  him  in  damages,  yet  the  plaintiffs,  having  been 
subjected  to  no  liability  beyond  that  which  they  assumed  in  indorsing- 
the  note — namely,  that  of  having  the  full  amount  of  the  note  to  pay,, 
if  the  maker  or  D.  did  not  pay  it,  were  not  injured  by  his  act.     Dawson 
v.  Goodyear,  43  Conn.  548. 

1707.  Where  an  indorsement  of  a  negotiable  bill  purports  to  pass- 
the  title  thereto  from  the  indorser,  and  to  divest  him  of  all  beneficial 
interest  therein,  a  consideration  for  the  transfer  is  presumed,  and  the 
burden  of  proving  want  of  consideration  rests  upon  the  party  alleging 
it.     Hook  v.  Pratt,  78  N.  Y.  371. 

1708.  The  restrictive  indorsements  which  are  held  to  negative  the 
presumption  of  a  consideration,  are  such  as  indicate  that  they  are  not 
intended  to  pass  title,  but  merely  to  enable  the  indorsee  to  collect  for 
the  benefit   of  the  indorser.     An  indorsement  to  one  person  for  the 
benefit  of  another  affords  no  such  indication.     Hook  v.  Pratt,  78  N.  Y. 
371. 

1709.  H.,  defendant's  testator,  drew  a  draft  on  the  treasurer  of  the 
M.  R.  C.  Co.,  payable  to  his  own  order.     He  indorsed  it,  "  Pay  to  the. 
order  of  Mrs.  Mary  Hook,  35  King,  for  the  benefit  of  her  son  Charlie.'r 
In  an  action  upon  the  draft,  held,  that  the  indorsement  imported  a  con- 
sideration, and  its  effect  was  simply  to  give  notice  of  the  interest  of 
the  beneficiary  named.     Hook  v.  Pratt,  78  N.  Y.  371. 


OF   STANDARD   DECISIONS.  235- 


EVIDENCE. 

1710.  In  an  action  to  recover  the  amount  of  a  check  drawn  by  C.r 
plaintiffs  assignor,  to  the  order  of  defendant,  and  alleged  to  have  been 
delivered  to  the  latter  to  be  used  in  purchasing  a  draft  for  the  draweer 
the  defendant  averred  in  his  answer  that  the  check  was  intended  as  a 
payment  in  part  of  a  claim  which  C.  "  morally  owed  "  the  defendantr 
growing  out  of  a  fraud  perpetrated  by  C.  in  inducing  defendant  to  take 
a  fraudulent  note ;  the  alleged  facts  in  reference  thereto  being  set  forth 
in  the  answer  which  also  averred  that  defendant  settled  the  claim  with 
C.  on  his  promise  that  he  would  at  some  time  pay  the  loss.     On  the 
trial,  after  L.,  as  a  witness  for  plaintiff,  had  testified  that  the  check  was 
given  to  purchase  a  draft,  deway  of  checks,  notes  or  otherwise."     Heldr 
that  the  evidence  offered  was  properly  rejected  ;  that  evidence  of  the 
details  of  the  fraud  could  not  legitimately  tend  to  confirm  defendant's- 
version.     Canaday  v.  Krum,  83  N.  Y.  67. 

1711.  On  an  issue  as  to  whether  certain  promissory  notes,  dated  on 
a  particular  day,  were  given  for  money  lost  at  play  and  therefore  void, 
it  is  not  allowable  to  prove  that  the  part}'  giving  them  was  intoxicated 
on  the  day  of  the  date  of  the  notes  in  suit,  and  that  when  intoxicated 
he  had  a  propensity  to  game.      Thompson  v.  Bowie,  4  Wall.  U.  S.  463. 

1712.  An  accidental  loss  or  disappearance  in  a  bank  of  a  bill  sent 
to  it  to  collect,  from  the  bank's  not  taking  sufficient  care  of  letters 
brought  to  it  from  the  mail,  carries  with  it  a  presumption  of  negli- 
gence in  the  bank ;  and  on  suit  against  it,  the  burden  of  proof  is  on  the 
bank  to  explain  the  negligence.     Chicopee  Bank  v.  Philadelphia  Bankr 
9  Wall.  U.  S.  641. 

1713.  Statements  either  oral  or  written,  made  by  the  vendor  after 
a  sale,  are  incompetent  evidence  against  purchaser.     Clements  v.  Moorer 
6  Wallace,  U.  S.  299 ;  also,  Thompson  v.  Bowman,  6  Wall.  U.  S.  316. 

1714.  Statements  of  a  grantor  of  land  made  after  he  has  conveyed 
the  land  to  others  are  inadmissible  to  invalidate  his  previous  deed  of 
it.     Steinbach  v.  Stewart,  et  al.,  11  Wall.  U.  S.  567. 

1715.  The  opinions  of  experts   may  not  be  received  in  evidence 
where  the  inquiry  is  as  to  a  subject  which  does  not  require  any  peculiar 
habits  or  study  in  order  to  qualify  a  man  to  understand  it.     Ferguson 
v.  Hubbell,  97  N.  Y.  507. 

1716.  In  an  action  upon  a  promissory  note  executed  by  the  firm  of 
H.  &   M.  payable  to  their  order  and  indorsed  by  them  to  K.,  M.  de- 
fended on  the  ground  that  the  note  was  executed  without  consideration, 
was  diverted  from  the  purpose  for  which  it  was  intended  and  was  trans- 
ferred by  K.  to  the  plaintiff  as  security  for  an  individual  indebtedness. 
Upon  a  second  trial  the  direct  examination  of  H.,  who  was  a  witness 
upon  the  first  trial,  but  who  had  since  died,  was  read  in  evidence  in  be- 
half of  M.     Among  the  questions  asked  was  what  K.  gave  him  for  the 
note  ;  the  answer  was  that  K.  gave  nothing,  "  but  I  paid  for  the  not& 
to  "  M.     Plaintiff  then  offered  ia  evidence  the  cross-examination  of 
H.,  wherein  he  testified  that  M.  was  indebted  to  him  in  the  amount  of 
the  note  on  a  private  account  for  which  the  note  was  given.     M.  there- 
upon was  offered  as  a  witness  in  his  own  behalf  to  contradict  the  evi- 
dence of  H.  as  to  the  consideration  for  the  note.     This  was  objected  to- 


•236  MONROE'S  DIGEST 

and  excluded  as  incompetent  under  the  Code  of  Civil  Procedure  (§ 
829).  Held  error;  that  the  evidence  offered  was  within  the  letter  and 
•spirit  of  the  exception  in  the  Code  which  permits  such  evidence  to  be 
given  where  the  testimony  of  the  deceased  person,  concerning  the  same 
transaction,  has  been  given  in  evidence.  Potts  \.  Mayer,  86  N.  Y.  302. 

1717.  At  the  request  of  P.,  defendant's  president,  who  was  its  gen- 
eral manager  and  financial  agent,  and  in  the  frequent  habit  of  borrow- 
ing money  on  its  account,  plaintiff  raised  moneys  on  his  own  credit 
which  he  delivered  to  P.  as  a  loan  to  the  corporation.     In  an  action  to 
recover  for  the  moneys  so  loaned,  held,  that  in  the  absence  of  evidence 
tending  to  show,  or  an  offer  to  show,  that  plaintiff  acted  in  bad  faith, 
or  had  knowledge  or  information  that   P.  did  not  intend  to  use  the 
money  in  the  business  of  the  corporation,  an  offer  to  show  that  said 
money  was  not  so  used  was  properly  excluded.     Kraft  v.  F.  P.  &  P. 
As^n,  87  N.  Y.  628. 

1718.  Parol  evidence  is  admissible  to  explain  receipt.     It  is  also 
admissible  to  explain  a  written  contract,  as  a  general  rule.     Pribble  v. 
Kent,  10  Ind.  327. 

1719.  Memorandum-book,    having    alterations    and    erasures    in 
amounts  kept  by  a  party  himself,  is  not  admissible  in  evidence.     Doster 
v.  Brown,  25  Ga.  153. 

1720.  Want  of  date  in  memorandum-book  is  no  objection  to  its  ad- 
mission in  evidence  to  prove  an  account.     The  date  of  the  account  may 
be  proved  by  other  evidence.     Ibid. 

1721.  W.,  as  a   witness  for  defendants,  testified  that  he  sold  the 
bond  in, question,  and  four  others  of  the  same  description,  to  plaintiffs, 
:and  upon  cross-examination  that  he  was  owner  of  the  bonds.     Plain- 
tiffs produced,  and  were  permitted  to  give  in  evidence,  a  memorandum, 
in  the  handwriting  of  W.,  showing  that  four  of  the  bonds  belonged  to 
.another   person,   also   a  check  given  for  the  purchase-money,    which 
was  made  payable  to  that  person.     Held,  no  error.     Nicolay  v.  Unger, 
80  N.  Y.  54. 

1722.  The  right  of  a  partner  to  sign  the  firm  name  to  a  contract 
•of  indemnity  in  favor  of  third  person  must  be  strictly  proved  ;  but  it 
need  not  necessarily  be  proved  in  a  written  authority  to  him.     Moran, 
4t  al.  v.  Prather,  23  Wall.  U.  S.  492. 

1723.  In  a  court  of  conscience  deliberate  concealment  is  equivalent 
to  deliberate  falsehood.     When  a  living  man  speaks  in  such  a  court  to 
•enforce  a  dead  man's  contract  with  himself  against    parties  who   he 
knows  are  ignorant  of  the  facts,  he  must  be  frank  in  his  statements, 
unless   he   is  willing  to  take  the  risk  of  presumptions  against  him. 
Crosby  v.  Buchanan,  23  Wall.  II.  S.  420. 

1724.  Entries  in  the  defendant's  own  books,  whose  purport  was  to 
«how  that  the  transaction  was  on  account  of  T.,  are  not  admissible. 
Mulhall  v.  Keenan,  18  Wallace,  U.  S.  342. 

1725.  The  affidavit  of  assessors  as  to  the  obtaining  the  requisite 
consents  to  the  issuing  of  town  bonds  only  prima  facie,  not  conclusive 
evidence  of  facts  therein  stated.      Town  of  S.  v.  Teutonia  S.  Bank,  84 
N.  Y.  403. 

1726.  When   entries   in   book   of  corporation   competent   against 
officers.     First  Nat.  Bank  v.    Tisdale,  (Mem.)  84  N.  Y.  655. 

1727.  The  Gr.  M.  Life  Insurance  Company  loaned  certain  monej^s, 


OF   STANDARD   DECISIONS.  237 

for  which  it  received  the  individual  notes  of  T.,  defendant's  cashier; 
the  checks  for  the  amounts  loaned  were  made  payable  to  the  order  of" 
T.,  and  the  entries  of  the  loans  in  the  books  of  said  company  were  as 
made  to  T.  Held,  that  these  were  not  conclusive  that  the  loan  was 
made  to  T.  individually  ;  but  that  it  was  proper  to  show  by  oral  evi- 
dence that  the  loan  was  made  to  defendant.  Pierson  v.  At.  Nat.  Bank 
77  N.  Y.  304. 

1728.  A   party   to  an  action,  by  calling  the  opposite  party  as  a 
witness,  does  not  become  bound  by  his  testimony,  but   may   dispute 
specific   facts  so  testified  to,  although  not  permitted  to  impeach  the 
character   of    the   witness   for   truth.       Cross  v.    Cross,   108  N.    Y, 
628. 

1729.  In  an  action  upon  a  promissory  note,  the  defence  was,  in  sub- 
stance, that  defendants  purchased   for  plaintiff,  and   with  her  money, 
certain  United  States  bonds  ;  that,  she  not  desiring  to  be  known  as  the 
purchaser,  they  were  bought  in  a  defendant's  name,  and  left  in  their 
hands  for  safe  keeping,  the  note  being  given  as  a  means  of  insuring 
the  delivery  of  the  bonds  when  called  for,  or  of  obtaining  a  compensa- 
tion  therefor  if  they  were  withheld ;  and  that  the  bonds  were  subse- 
quently delivered  to  plaintiff's  husband,  who  was  her  authorized  agent. 
Upon  the  trial  one  of  the  defendants  was  allowed  to  testify  to  conver- 
sations  with   plaintiff's   husband,  who   was   then   deceased,  in  one  of 
which  he  requested  witness  to  go  and  purchase  the  bonds  in  his  own 
name.     No  authority  had  then  been  shown  in  plaintiffs  husband  to  act 
for  her,  and  the  evidence  was  objected  to  on  that  ground  ;  the  authority 
was   subsequently  proved,  and  it  appeared  from  the  record  that  the 
trial  court  knew  that  this  should  be  established  before  the  declarations 
were  competent.     Held,  that  the  objection  was  simply  to  the  order  of 
proof,  which  is  always  in  the  discretion  of  the  court,  and  so  was  unten- 
able.    Plainer  v.  Plainer,  78  N.  Y.  90. 

1730.  In  an  action  to  recover  moneys  paid  for  a  forged  bond,  al- 
leged  to  have  been  sold  by  defendants  to  plaintiffs,  the  defence  was- 
that  the  bond  was  sold  by  W.,the  owner,  and  was  simply  delivered  by 
defendants,  who  held  it,  as  security  for  a  loan.     A  witness  for  defend- 
ants  having  testified  to  the  transactions  within  his  knowledge,  wa& 
asked   whether  defendants'  firm  ever  sold  the  bond  to  plaintiffs,  this 
was  objected  to  and  excluded.     Held,  no  error,  as  it  called  upon  the 
witness  to  place  a  construction  upon  the  facts,  which  was  for  the  jury 
to  do.     Nicolay  v.  Unger,  80  N.  Y.  54. 

1731.  The  plaintiff's  books  of  original  entries  are  competent  evi- 
dence of  the  items  and  the  amount  of  the  debt  claimed,  and  he  may 
show  by  other  evidence  the  other  facts  which  entitle  him  to  recover. 
Noar  v.  Gill,  111  Penn.  488. 

1732.  To  acquire  the  force  of  law  a  custom  must  have  been  estab- 
lished and  become  general  so  that  a  presumption  of  knowledge  by  the 
parties  can  be  said  to  arise.     Saint  v.  Smith,  41  Tenn.  51. 

1733.  After  the  receipt  in  evidence  of  written  certificates  signed 
by  defendant  and  the  payee,  attached  to  other  similar  paper  to  the  ef- 
fect that  they  were  business  paper,  plaintiff  was  allowed  to  prove,  under 
objection  and  exception,  statements  of  the  payee  when  transferring  the 
paper  to  the  same  effect  as  the  certificates.     Held,  that  if  erroneous, 
the   error  could  have  done  no  harm,  as  it  was  but  a  repetition,  in  a 


238  MONROE'S  DIGEST 

feebler  way,  of  the  declarations  furnished  by  defendant  to  the  payee  to 
be  used  by  him.     Bayliss  v.  Cockcroft,  81  N.  Y:  364. 

1734.  Plaintiff  was  allowed  to  testify,  under  objection  and  excep- 
tion, that  he  believed  in  the  truth  of  a  certificate  required  of  and  given 
by  defendant  to  the  effect  that  the  note  in  suit  was  business  paper,  and 
that  he  had  no  intention  to  use  it  to  evade  the  statute  of  usury.    Held, 
no  error.     Bayliss  v.  Cockcroft,  81  N.  Y.  364. 

1735.  The  courts  of  this  State  will  not  take  judicial  notice  of  any 
laws  of  another  State  not  according  to  the  common  law.     Harris  V. 

White,  81  N.  Y.  534. 

1736.  The  title   of  the   assignee   of  a  non-negotiable  promissory 
note  cannot  be  affected  by  declarations  of  the  assignor,  made  after  the 
assignment.      Van  Gelder  v.  Van  Gelder,  81  N.  Y.  625. 


EXECUTION. 

1737.  This  action  was  upon  a  promissory  note  made  by  defendant 
W.,  and  indorsed  for  his  accommodation  by  defendant  E.  Judgment 
•was  entered  against  W.  by  default ;  execution  issued  and  delivered  to 
the  sheriff  with  directions  not  to  act  upon  it  or  make  any  levy  until 
further  orders.  During  the  life  of  the  execution  W.  had  in  his  open 
and  visible  possession  personal  property  sufficient  to  satisfy  it.  When 
plaintiff  directed  a  levy  no  property  could  be  found.  Held,  that  no 
lien  was  acquired  upon  the  property  of  W.  by  the  issuing  of  the  ex- 
ecution ;  that  plaintiffs  were  under  no  obligation  to  E.  to  secure  such  a 
lien  ;  and  that  therefore  the  facts  constituted  no  defence  as  to  E. 
Smith  v.  Erwin,  77  N.  Y.  466.  , 


EXEMPTIONS. 

1738.  The  members  of  a  firm  are  neither  severally  nor  jointly  en- 
titled to  partnership  assets,  exempted  to  heads  of  families  under  sec- 
tion 11  of  the  statute  touching  exemptions.  State  ex  rel.  Billingsley 
v.  Spencer,  64  Mo.  355 ;  Pond  v.  Kimball,  101  Mass.  105 ;  In  re  Hand- 
lin,  3  Dill.  290 ;  Bonsall  v.  Conley,  44  Penn.  St.  447 ;  Guptil  v.  Mo- 
Pee,  9  Kas.  30.  The  courts  of  New  York,  Wisconsin  and  North 
Oarolina  hold  otherwise. 


OF  STANDARD   DECISIONS.  239 


FACTOR. 

1739.  Where  a  factor,  in  consideration  of  consignment  made  to 
him,  makes  advances  or  incurs  liabilities  for  the  owner  or  consignor, 
such  owner  cannot,  by  subsequent  instructions,  control  the  action  of 
his  factor.     If  the  advances  are  made  or  the  liabilities  incurred  on  ac- 
count of  the  consignment,  and  before  an  assent  to  the  directions  of  the 
owner  in  respect  to  the  time  of  sale  as  the  price,  the  factor  has  thereby 
acquired   a  special  property,  and  may  sell  so  much  as  will  reinburse 
him.     The  owner  has  a  general  right  to  impose  terms  upon  his  factor; 
but   that  right  is  restricted  if  he  has  drawn  against  the  consignment 
before  the  instructions  are  given,  and  he  cannot  control  the  factor  as 
to   time  of  sale  or  price  unless  he  pays  the  factor  for  the  advances 
made  or  liabilities  incurred.     Cotton  v.  Hiller,  52  Miss.  7. 

1740.  At  common  law,  a  factor  has  no  power  to  pledge,  whether 
he  is  intrusted  with  the  possesssion  of  the  goods,  or  with  the  bills  of 
lading  or  other  symbol  of  property.     Allen  v.  St.  Louis  Bank,  120   U. 
S.  20. 

1741.  A  usage  of  trade  for  banks  to  take  pledges  from  factors,  as 
security   for  the  payment  of  the  general  balance  of  account  between 
them,   of  goods   known  to  be  held  by  them  as  factors,  is  unlawful. 
Ibid. 

1742.  An   unauthorized  pledge  by  a  factor,  of  goods  owned  by  a 
partnership  of  which  he  is  a  member  to  secure  the  payment  of  his  own 
debt  to  one  who  knows  him  as  a  factor  only,  is  invalid  against  partner- 
ship.    Ibid. 

1743.  Factor  must  keep  books  in  which  shall  be  correctly  entered 
the  transactions  on  account  of  his  principal,  and  the  latter  is  entitled 
to  a  correct  copy  of  the  entries,  including  all  memoranda  connected 
therewith.     If  the  answer  is  ambiguous  in  this  respect,  an  objection  to 
it  will  be  sustained.     Keighler  v.  Savage  Mfg  Co.,  12  Md.  383. 

1744.  If  a  factor,  to  whom  the  owner  of  goods  has  made  a  nego- 
tiable promissory  note  and  consigned  the  goods  under  an  agreement  be- 
tween them  that  the  proceeds  of  the  goods  when  sold  shall  be  applied 
to  the  payment  of  the  note,  indorses  the  note  and  pledges  the  goods  to 
secure  the  payment  of  advances  made  to  him  by  one  who  knows  him 
to  be  a  factor  and  to  hold  the  goods  as  such,  the  pledgee  is  bound  to 
apply  the  proceeds  of  the  goods  to  the  payment  of  the  note,  and  the 
maker  may  set  up  this  obligation  in  defence  of  an  action  by  the  pledgee 
on  the  note.     Allen  v.  St.  Louis  Bank,  120  U.  S.  20. 

1745.  As  a  general  rule  a  factor  cannot  bind  his  principal  by  a 
disposition  of  his  property  out  of  the  ordinar}'  course  of  business  nor 
can  his  disposal  of  the  goods  in  violation  of  the  order  of  his  principal, 
even  to  repay  advances,  at  least,  until  he  has  called  upon  his  princi- 
pal for   reimbursement.     Commercial  Bank  v.    Heilbronner,  108  N. 
Y.  439. 

1746.  Where  a  firm  of  commission  merchants,  which  was  insolvent, 
for  the  purpose  of  protecting  its  principals,  opened  a  bank  account 
in  the  name  of  the  firm,  with  the  word  "  agent  "  added,  the  bank 
having  knowledge  of  such  purpose,  and  deposited  to  the  credit  of  that 
account  the  proceeds  of  sales  of  goods  of  a  principal,  and  upon  settle- 


240  MONROE'S  DIGEST 

ment  gave  to  him  a  check  for  the  balance  belonging  to  him,  held,  that 
the  bank  had  no  right  to  charge  against  the  account  an  individual 
debt  of  the  firm,  even  with  its  consent.  Baker  v.  Nat.  Ex.  Bank.  100 
N.  Y.  31. 


FAIR  DEALING. 

1747.  When  any  transaction  is  equally   susceptible  of  two  ex^ 
planations,  one  of  which  is  that  it  is  fraudulent,  and  the  other  is  con- 
sistent with  good  faith  and  fair  dealing,  that  explanation  will  be  pre- 
ferred which  is  consistent  with  good  faith  and   fair  dealing.     Parol 
evidence  is  admissible  for  the  purpose  of  showing  that  a  deed  absolute 
on  its  face  was  in  fact  intended  as  a  mortgage.     Hurford  v.  Harned, 
6  Oregon,  362. 

1748.  Where  a  fiduciary  relation  is  shown  to  exist  the  burden  is 
upon  the  person  taking  securities  or  contracts  enuring  to  his  benefitr 
to  show  that  the  transaction  is  just  and  fair.     Fisher  v.  Bishop,  108  N. 
Y.  25. 

1749.  The   rule   is   not  limited  to  cases  of  attorney  and  client, 
guardian  and  ward,  trustee  and   cestui  que  trust,  or  other  similar  re- 
lations, but  holds  good  wherever  fiduciary  relations  exist,  and  there 
has  been  a  confidence  reposed  which  invests  the  person  treated  with  an 
advantage,  in  treating  with  the  person  so  confiding.     Ibid. 


FALSE  PRETENCES. 

1750.  An  action  of  deceit  will  not  lie  upon  false  representations 
either  as  to  what  a  patent-right   cost  the  vendor  ;  or  was  sold  for  by 
him ;  or  as  to  offers  made  for  it,  or  profits  that  could  be  derived  from 
it ;  or  for  any  mere  expressions  of  opinion  of  any  kind  about  the  prop- 
erty sold.     Bishop  v.  Small,  63   Me.  12.     Where  the  testimony  does- 
not  exhibit  any  want  of  ordinary  care  on  the  part  of  the  plaintiff  in  an 
action  of  deceit,  but  the  reverse,  the  jury  may  properly  be  instructed 
that  it  will  not  relieve  the  defendant  from  liability  to  come  into  court 
now,  and  say  to  the  plaintiff,  "  If  you  had  exercised  more  diligence 
and   circumspection    it    would    have    frustrated   my   plan  for  deceiv- 
ing you,  and  therefore  you  cannot  recover."     Roberts  v.  Plaisted,  63 
Me.  335. 

1751.  False  representations  made  by  one  party  to  another  to  in- 
duce him  to  enter  into  a  contract,  will  not  avoid  the  contract,  unless  it  is 
shown  that  the  party  complaining  relied  upon  such  representations, 
and  was  thereby  misled  and  induced  to  make  said  contract.     Dunning 
v.  Gresson,  6  Oregon,  241.     Where  a  member  of  a   firm  makes  to  a 
mercantile  agency   statements  known   by  him  to  be   false,  as  to  the 
capital  invested  in  the  firm  business,  with  the  intent  that  the  statements 
shall    be   communicated    to   persons   interested   in    ascertaining    the 
pecuniary  responsibility  of  the  firm,  designing  thus  to  procure  credits 
and  to  defraud  such  persons ;  and  such  statements  are  communicated 


OF   STANDARD  DECISIONS.  241 

to  one  who  in  reliance  thereon  sells  goods  to  the  firm  upon  credit,  an 
action  for  deceit  is  maintainable  at  the  suit  of  the  vendor  against  the 
partner  making  such  false  representations.  Eaton  C.  &  B.  Co.  v, 
Avery,  83  N.  Y.  31. 


FINDINGS  OF  LAW  AND  FACT. 

1752.  No  fact  can  be  considered  for  purpose  of  reversing  judgment 
entered  on  decision  of  court  or  report  of  referee,  unless  stated  in 
findings  or  requested  to  be  found  on  uncontroverted  evidence.  Thom- 
son v.  Bank  of  British  No.  Am.,  82  N.  Y.  1. 


FIXTURES. 

1753.  A  mortgage  of  a  building  covers  an  engine  and  boiler,  a 
steam  gauge,  a  water  tank,  a  steam  pump  connected  therewith,  and  the 
shafting  therein,  intended  to  permanently  increase  the  value  of  the 
building  for  occupation ;  but  not  machines  which  are  incidental  merely 
to  the  particular   business  carried  on   in  the  building  at  the  time,  al- 
though some  of  them  are  attached  to  the  building  by  nails  or  bolts. 
McConnell  v.  Blood,  123  Mass.  47. 

1754.  Actual  annexation  to  the  realty  or  something  appurtenant 
thereto,  is  the  condition  upon  which  property,  ordinarily  regarded  as 
personal,  become  a  fixture  and  part  of  the  realty.     The  intention  to 
make  a  chattel  a  part  of  the  realty,  is  only  important  upon  the  ques- 
tion whether  the  owner  intended  to  make  the  chattel  so  fixed  a  tem- 
porary or  a  permanent  accession  to  the  freehold.     Having  once  been  a 
part  of  the  realty,  a  removal  temporarily,  without  intent  to  sever  per- 
manently, will  not  reconvert  the  chattel  into  personalty  and  destroy 
its  character  as  a  fixture.      Williamson  v.  New  Jersey  fi.  R.  Co.,  29  N. 
J.  311. 

1755.  Fixtures  erected  by  a  tenant  on  the  demised  premises  for  the 
purpose  of  carrying  on  his  trade,  being  necessary  to  the  enjoyment  of 
the  term  are  personal  property  during  the  continuance  of  the  term. 
Kile,  Sheriff  v.  Gielner,  114  Penn.  381. 


FOREIGN  CORPORATIONS. 

1756.  Section  8  of  the  act  of  the  Legislative  Assembly  of  Oregon, 
entitled  "  An  act  to  regulate  and  tax  foreign  insurance,  banking,  ex- 
press and  exchange  corporations  or  associations  doing  business  in  the 
State,"  approved  October  21,1864,  is  an  indirect  prohibition  against 
such  corporations  transacting  business  in  the  State  until  they  shall 
have  executed  and  recorded  the  power  of  attorney  required  by  that 
section.  A  contract  made  by  such  corporation  in  this  State  before  it 
16 


242  MONIIOE'S  DIGEST 

shall  have  complied  with  the  provisions  of  said  section  8  is  as  to  third 
parties  void,  and  cannot  be  enforced  by  the  corporation.  Bank  of 
British  Columbia  v.  Page,  6  Oregon,  431. 


FORECLOSURE. 

1757.  A  bill  to  foreclose  a  mortgage  or  deed  of  trust  may  be  brought 
in  the  name  of  the  real  owner  of  the  note  secured.     Hahn  v.  Huber,  et 
al.,  83  111.  243. 

1758.  Where  the  terms  of  a  mortgage  or  deed  of  trust  require  be- 
fore any  foreclosure  or  sale  under  it  is  made,  sixty  days'  notice  shall 
be  given  in  certain  newspapers  ;   a  sale  without  the  notice  conveys  no 
title.     Bigler  v.  Waller,  14  Wall.  U.  S.  297. 

1759.  A  purchaser  upon,  and  in  possession  under,  a  foreclosure  sale, 
void  as  against  the  owner  of  the  equity  of  redemption,  because  he  was 
not  made  a  party  to  the  foreclosure  suit,  does  not  stand  in  the  position 
of  mortgagee  or  assignee  of  the   mortgage   in  possession,  but  as   a 
stranger.     Shriver  v.  Shriver,  86  N.  Y.  575. 

1760.  In  an  action  to  foreclose  a  mortgage  given  to  N.,  plaintiff's 
testator,  to  secure  the  payment  of  four  promissory  notes,  dated  No- 
vember 2,  1874,  for  a  loan  of  $ti,000,  "  payable  in  three  months  from 
date,  with  interest,"  the  defence  was  usury.     It  was  proved  on  the  part 
of  the  defendants,  without  contradiction,  that  in  February,  1875,  when 
the  notes  fell  d^ue,  N.  demanded  of  the  defendant's  agent  three  months' 
interest  at  the  rate  of  ten  per  cent,  per  annum,  and  stated  that  it  was 
"  due  upon  the  notes."     This  was  paid  in  compliance  with  the  demand, 
and  N.  gave  a  receipt  therefor,  acknowledging  the  receipt  of  $150  for 
the   three   months'   interest  "  due   on   the   notes."     Four   successive 
quarterly  payments  were  demanded  and  received  thereafter  at  the  same 
rate  and  receipted  for  as  due  upon  the  notes.     In  August,  1876,  N. 
wrote  to  one  of  the  defendants,  stating  that  two  quarterly  payments 
of  interest  were  due,  and  requested  pa3*ment  of  $300  therefor.     Held, 
that  the  demands  and  acquiescence  therein  amounted  to  an  acknowledg- 
ment by  both  parties  that  the  original  securities  were  given  under  an 
agreement  that  they  should  bear  interest  at  the  rate  often  per  cent. ; 
and  that  a  refusal  to  find  that  the  loan  was  usurious  was  error.    Smith 
v.  Hathorn,  88  N.  Y.  211. 

1761.  In  an  action  to  foreclose  a  mortgage,  commenced  prior  to 
the  enactment  of  the  code  of  Civil  Procedure,  a  deficiency  judgment  was 
demanded  against  defendant  B.,  to  whom  M.,  the  mortgagor,  had  con- 
veyed, subsequent  to  the  mortgage,  by  deed,  containing  a  clause  stat- 
ing that  B.  assumed  and  agreed  to  pay  the  mortgage.     M.  and  B.  both 
appeared  and  answered  ;  the  latter  alleged  in  her  answer  that  she  did 
not  assume  or  agree  to  pay  the  mortgage  ;  that  M.,  to  whom  she  en- 
trusted the  transfer,  without  her  knowledge  or  consent,  fraudulently 
caused  said  clause  to  be  inserted  ;  that  she  accepted  the  deed,  believing 
it  had  been  drawn  according  to  the  prior  agreement,  and  that  she  did 
not  know  that  it  contained  the  clause.     She  demanded  that  the  deed  be 
reformed  by  striking  out  the  clause  and  the  complaint  dismissed  as  to 
Lar.     Upon  the  trial,  B.  offered  to  prove  the  facts  alleged   in   her 


OF   STANDARD  DECISIONS.  243 

answer;  this  proof  was  objected  to  and  excluded.  Held  error;  that  as 
the  action  was  in  equity,  and  M.  a  party,  a  complete  determination  of 
every  question  arising  under  said  answer,  in  which  plaintiff  was  inter- 
ested, could  have  been  had  ;  that  if  it  desired  to  have  M.  bound  by  the 
determination  of  the  issues  presented  by  said  answer,  it  could  have 
given  him  notice  of  B.'s  defence,  and  ottered  him  the  future  manage- 
ment of  the  suit.  (Code  of  Procedure,  §§  122,  274  ;  Code  of  Civil 
Procedure,  §§  452,  1204.)  Albany  City  Svgs.  Inst.  v.  Burdipk,  87  N. 
Y.  40. 

1762.  The  provision  of  the  mechanics'  Lien  Law  (Laws  of  1863, 
•chap.  500,  §  11),  declaring  that  liens  shall  "in  all  cases"  cease  at  the 
•expiration  of  one  year,  unless  continued  by  order  of  the  court,  refers 
to  the  lien  on  the  premises  ;  it  has  no  reference  to  a  claim  by  the  lienor 
for  surplus  moneys  arising  on  sale  of  the  land  upon  judgment  in  fore- 
•closure,  which  cuts  off  the  lien  ;  as,  in  such  case,  the  claim  of  the  lienor 
is  reduced  to  a  right  to  the  avails.     Em-Ind.  Svgs.  Bank  v.  Goldman, 
75  N.  Y.  127. 

1763.  H.  R.  conveyed  certain  premises  to  R.,  who  conveyed  them 
to  the  wife  of  the  former;  to  secure  a  loan  made  to  H.  R.  of  $4,500 
he  and  his  wife  executed  their  bond  with  a  mortgage  upon  the  premises  ; 
subsequently  she  conveyed  an  undivided  half  of  the  premises  to  S., 
•who  conveyed  it  to  H.  R.     The  latter  procured  a  loan  of  $8,000,  for 
which  he  gave  his  individual  bond,  secured  by  mortgage  upon  the  whole 
premises,  executed  by  him  and  his  wife.     Of  this  sum  sufficient  was 
taken  to  discharge  the  prior  mortgage;  the  interest  upon  which  had 
been  paid  by  H.  R.  until  its  discharge ;  and  he  also  paid  the  interest 
upon  the  new  mortgage  up  to  the  time  of  his  death.     His  wife  never 
recognized  the  loan  for  which  it  was  given  as  made  for  her  benefit,  but 
alwa3"S  claimed  it  was  to  her  husband,  to  be  paid  as  between  them  out 
of  his  half  of  the  premises.     H.  R.  died  leaving  a  will,  by  which  his 
wife  and  W.  were  appointed  executors,  with  power  to  sell  real  estate. 
Mrs.  H.   R.   subsequently  borrowed  of  M.  $4,000,  giving  her  bond, 
secured  by  mortgage  upon  her  undivided  half  of  the  premises.     Cer- 
tain judgments,  also,  were  recovered  against  her,  and  executions  were 
issued  thereon,  under  which  her  half  was  sold  to  C.  and  S.,  who  re- 
ceived the  sheriffs  deed;  they  also  bid  off  the  same  on  foreclosure  of 
the  mortgage  so  given  by  her.     The  executors  of  the  will  of  H.  R.  con- 
veyed his  undivided  half  to  T.     In  a  contest  as  to  surplus  moneys 
arising  on  sale  under  judgment  of  foreclosure  of  the  $8,000  mortgage, 
held,  that  as  the  facts  showed  that  the  mortgage  foreclosed  was  given 
to  secure  a  debt  of  H.  R.,  his  wife,  as  to  her  undivided  half  of  the 
premises,  standing  simply  as  a  surety  for  him,  as  between  them,  his 
half  was  in  equity  primarily  liable  to  pay  the  debt ;  and  she  would 
have  been  entitled  to  any  surplus  to  the  extent  of  the  value  of  her  un- 
divided half;  that  under  the  mortgage  executed  by  her,  the  mortgagee 
took  the  position  and  acquired  the  rights  Mrs.  H.  R.  had  at  the  time 
she  executed  it,  to  which  C.  and  S.  by  their  purchase  succeeded,  and  so 
•were  entitled  to  the  surplus.     Erie   Co.  Savings  Bank  v.  Boop,  80 
N.  Y.  591.     Also,  held,  that  the  rights  so  acquired  by  the  mortgagee 
and  by  C.  and  S.,  were  not  affected  by  any  acts  or  agreements  on  the 
part  of  Mrs.  H.  R.  to  which  they  did  not  assent.     Erie  Co.  Savings 
Bank  v.  Hoop,  80  N.  Y.  591. 


244  MONROE'S  DIGEST 


FORGERY. 

1764.  Where  several  persons  are  parties  to  a  forgery,  by  means  of 
which  another  is  induced  to  pay  mone}'s  to  one  of  them,  who  acts,  in 
obtaining   the   money,  in    behalf  of  those  engaged  with  him  in  the 
forger}7,  an  action  for  money  had  and  received  is  maintainable  against 
all ;  it  is  not  necessary  to  establish  that  each  of  the  defendants  received 
a  share  of  the  proceeds.      Un.  Tr.  Co.  v.  Gleason,  77  N.  Y.  400. 

1765.  A  wife  who  merely  aids  her  husband  in  the  commission  of 
the  forgery,  or  an  individual  creditor ;  nothing  more  than  the  debtor's 
interest  in  the  property  can  in  any  event  be  liable.     Atkins  v.  Saxtonr 
77  N.  Y.  195. 

1766.  Equity  will  reform  a  contract  where  there  is  a  mistake  on 
one  side  and  fraud  on  the  other.     Ibid. 

1767.  In  an  action  to  recover,  as  for  moneys  had  and  receivedr 
moneys  obtained  from  plaintiff  by  one  R.  upon  pledge  of  forged  bondsr 
held,  that  evidence  connecting  one  of  the  defendants  with  the  forgery 
was  not  sufficient  to  make  her  liable  in  the  absence  of  evidence  of  any 
agreement  or  understanding  between  her  and  the  forger,  that  she  was- 
to  share  in  the  proceeds  of  the  forged  paper,  or  was  personally  to  have 
a  benefit  therefrom,  or  that  R.  was  employed  or  acted  as  her  agent,  or 
that  she  actually  received  any  part  of  the  sum  obtained.     N.  Y.  Guar~ 
and  Ind.  Co.  v.  Gleason,  78  N.  Y.  503. 

1768.  A  forged  certification  on  a  check,  when  confirmed,  verbally 
or  otherwise,  by  an  officer  duly  authorized  to  certify  checks,  is  good 
against  the  bank  whose  officer  confirmed  such  a  forged  certification 
and  an  action  will  lie  to  enforce  its  payment  of  the  check.     Continental 
Nat.  Bank  v.  National  Bank,  50  N.  Y.  575. 


FORMER  ADJUDICATION. 

1769.  It  seems  that  it  is  only  a  final  judgment  upon  the  merits- 
which  is  competent  as  evidence  and  conclusive  in  a  subsequent  action 
between  the  same  parties  or  their  privies.      Webb  v.  Buckelew,  82  N.  Y, 
555. 

1770.  Certain  notes  had  been  given  by  defendant  to  R.,  plaintiffs- 
assignor,  which  were  usurious;  a  judgment  for  the  full  amount  of  the 
notes  was  entered,  and  the  bond  in  suit  was  given,  in  pursuance  of  an 
agreement,  made  to  evade  the  statute  against  usury,  between  R.  and 
defendant,  that  the  latter  should  allow  such  judgment  to  be  enteredr 
and  should  then  give  the  bond  in  satisfaction  thereof.     Held,  that  the 
judgment  was  not  a  bar  to  the  defence  of  usury.     Moses  v.  McDivitt- 
88  N.  Y.  62. 


FRAUDS. 

1771.  The  rule  is  universal,  whatever  fraud  creates  justice  will 
destn>3r.  Where  fraud  is  committed  in  the  name  of  a  corporation,  by 
persons  having  the  right  to  speak  for  it,  for  their  personal  benefit,  they 


OF   STANDARD   DECISIONS.  245 

•will  be  made  to  answer  personally  for  the  injury  inflicted  by  their 
fraud.     Jewell  v.  Bowman,  29  N.  J.  171. 

1772.  Fraud  is  never  presumed,  and  to  justify  a  court  of  equity  in 
setting  aside  or  in  any  manner  interfering  with  a  judgment  on  this 
ground  the  fraud  must  be  clearly  and  conclusively  established.     The 
burden  of  proof  is  on  the  complainant  to  prove  his  case  as  it  is  alleged 
by  the  bill,  and  circumstances  of  mere  suspicion  will  not  warrant  the 
-conclusion  of  fraud.     Hill  v.  Reefsnider,  et  al.,  46  Md.  555. 

1773.  D.  &  Co.  sued  B.  upon  the  following  agreement,  signed  by 
B.  and  others,  but  not  under  seal :  "  We,  the  undersigned,  take  pleas- 
ure in  recommending  S.  to  D.  &  Co.     We  also  severally  agree  to  be- 
come responsible  for  $350  to  said  D.  &  Co.,  to  be  forthcoming  in  thirty 
days  after  the  final  delivery  of  the  work."     Held, 

1774.  1.  That  the  consideration  for  this  guaranty  could  not  be 
collected,  or  implied  with  certainty  from  the  instrument  itself  without 
recourse  to  parol  proof,  or  to  other  papers  unconnected  with  it  save  by 
such  proof.     2.  That  parol  testimony  for  the  purpose  of  showing  that 
the  guaranty  did  refer  to  a  contract  between  S.  &  D.  &  Co.,  and  thus 
make  out  a  consideration  for  it,  was  wholly  inadmissible  if  objected  to. 
Deutsche,  et  al.,  use  of  Kanders  v.  Bond,  46  Md.  164. 

1775.  A  contract  for  the  purchase  of  goods  on  credit,  made  with 
intent,  on  the  part  of  the  purchaser,  not  to  pay  for  them,  is  fraudulent, 
and  if  the  purchaser  has  no  reasonable  expectations  of  being  able  to 
pay,  it  is  equivalent  to  an  intention  not  to  pay.     But  where  the  pur- 
chaser intends  to  pay,  and  has  reasonable  expectations  of  being  able  to 
do  so,  the  contract  is  not  fraudulent,  although  the  purchaser  knows 
himself  to  be  insolvent,  and  does  not  disclose  it  to  the  vendor,  who  is 
ignorant  of  the  fact.      Talcott  v.  Henderson,  31  Ohio,  163. 

1776.  To  defeat  a  sale  it  is  not  necessary  to  establish  a  fraudulent 
intent  on  the  part  of  the  purchaser,  but  it  will  be  sufficient  if  it  be 
shown  that  he  knew  of  the  fraudulent  intent  of  the  seller,  or  had  notice 
of  such  facts  as  would  have  put  a  man  of  ordinary  prudence  upon  an 
inquiry  which  would  have  led  to  a   knowledge  of  the  fraudulent  pur- 
pose of  the  seller.     A  purchaser  in  good  faith,  who  has  paid  a  part  of 
the  purchase  money,  is  entitled  to  the  possession  of  the  goods,  notwith- 
standing he  may  subsequently  discover  that  the  vendor  sold  them  with 
intent  to  defraud  his  creditors.     Jones  v.  Hetherington,  et  al.,  45  Iowa, 
€81. 

1777.  An  action  for  fraudulent  representations,  as  a  general  rule, 
cannot  be  maintained  without  proof  that  defendant  believed,  or  had 
reason  to  believe,  the  representations  to  be  untrue  when  made,  and  that 
they   were  made  with  fraudulent  intent.     Stilt  v.  Little,  18   Sickels, 
N.  Y.  427. 

1778.  A  balance  due  one  of  the  assignors  from  an  insolvent  bank 
was  omitted  ;  this  was  shown  to  be  worthless.     Held,  that  no  inference 
of  fraud  could  be  drawn  from  the  omission.     Schultz  v.  Hoagland,  85 
N.  Y.  464. 

1779.  At  the  time  of  the  execution  of  the  assignment  there  was  a 
balance  standing  to  the  credit  of  one  of  the  assignors  upon  the  books 
of  another  bank  ;  this  was  not  included  in  the  inventory.     It  appeared 
that  the  assignment  was  executed  and  filed  on  Saturday ;  this  balance 
was  withdrawn  the  next  Monday  ;  it  did  not  appear  by  whom  or  in 


246  MONROE'S  DIGEST 

what  manner.  The  inventory  was  subsequently  made  and  was  verU 
lied.  Held,  that  the  presumption  was  that  the  balance  was  drawn  out 
on  the  check  of  the  assignor,  executed  prior  to  the  assignment ;  also, 
that  a  failure  of  the  assignor  to  explain  the  transaction  did  not  author- 
ize the  presumption  that  he  was  the  owner  of  the  balance  at  the  time 
of  the  assignment ;  that  until  proof  was  given  sufficient  to  authorize  a 
presumption  of  fraud,  the  assignors  were  not  bound  to  explain.  Schultz 
v.  Hoagland,  85  N.  Y.  464. 

1780.  To  constitute  a  disposition  of  property  by  a  debtor  with  in- 
tent to  defraud  his  creditors,  the  thing  disposed  of  must  be  of  value,, 
out  of  which  a  creditor  could  have  made  a  portion  of  his  claim,  it 
must  have  been  transferred  by  the  debtor  and  this  with  intent  to  de- 
fraud.    Hoyt  v.  Godfrey,  88  N.  Y.  669. 

1781.  A  vendor  of  goods,  the  sale  and  delivery  of  which  was  in- 
duced by  fraud  on  the  part  of  the  vendee,  does  not,  by  an  effort  to  re- 
take the  entire  propertjr,  which  is  successful  in  part  only,  lose  the 
right  to  pursue  the  vendee  for  the  value  of  the  unfound  portions  ;  nor 
is  the  effort  a  defence  to  an  action  to  recover  possession,  against  one  in 
whose  hands  a  part  is  found.     Powers  v.  Benedict,  88  N.  Y.  605. 

1782.  On  the  trial  an  indictment  charging  forgery  of  the  notes  of  a 
bank  of  another  state  or  country,  it  is  not  necessary  to  prove  by  direct 
evidence  the  due  incorporation  of  the  bank.     People  v.  D'Argeneour,. 
95  N.  Y.  624. 

1783.  No  legal  duty  rests  upon  a  party  to  an  action  in  whose 
favor  a  judgment  has  been  rendered  therein,  to  disclose  a  mistake 
made  in  his  favor  to  his  opponent ;  and  an  agreement  between  him 
and  an  assignee  of  the  judgment  to  keep  silent  as  to  the  mistake,  is 
not  actionable  fraud.      Wood  v.  Amory,  105  N.  Y.  278. 

1784.  If,  at  the  time  of  the  discovery  of  a  fraud,  the  party  injured  has 
a  legal  capacity  to  act  and  to  contract,  his  right  of  action  accrues  and 
the  statute  of  limitations  begins  to  run  against  it,  irrespective  of  the 
degree  of  intelligence  possessed  by  him,  or  his  freedom  from  undue  in- 
fluence, or  his  ability  to  resist  it.     Piper  v.  Hoard,  107  N.  Y.  67. 

1785.  The  mere  fact  that  an  assignment  of  property  by  a  debtor  was 
voluntary  and  without  consideration  is  not  sufficient  to  require  a  find- 
ing  that    it  was  fraudulent  against   creditors.     Genesee   Eiver   Nat. 
Bank  v.  Mead,  92  N.  Y.  637. 

1786.  Illegal  acts  prejudicial  to  rights  of  others  are  frauds  on 
those  rights,  although  the  parties  are  innocent  of  any  intention  to  com- 
mit a  fraud.     If  the  act  is  in  effect  a  fraud  upon  the  creditor,  the  mo- 
tive   of   the   parties   are  of  no   consequence.     Logan  v.    Logan,   22 
Florida,  561. 

1787.  Whosoever  receives  property  knowing  it  to  be  the  subject  of 
a  trust  and  to  have  been  transferred  Toy  the  trustee  in  violation  of  his 
duty  or  power,  takes  it  subject  to  the  right,  not  only  of  the  cestui 
que  trust,  but  of  the  trustee  to  reclaim  possession.     Zimmerman  \. 
Kinkle,  108  N.  Y  282. 

1788.  An  assignee  for  the  benefit  of  creditors  may  attach  a  chattel 
mortgage  executed  by  his  assignor  as  fraudulent  and  void  to  creditors. 
Ball  v.  Slaften,  98  N.  Y.  622. 

1789.  A  mere  fraudulent  representation  is  not  actionable  per  se. 
To  recover,  the  plaintiff  must  not  only  show  that  the  representations 


OF   STANDARD  DECISIONS.  247 

were  made,  and  that  they  were  false  and  fraudulent,  but  he  must  also 
show,  affirmatively,  that  he  has  been  injured  thereby,  that  he  is,  in 
some  way,  placed  in  a  worse  condition  than  he  would  have  been  had 
the  words  been  true.  Bartlett,  et  al.  v.  Blaine,  83  111.  25. 

1790.  Infancy   is  a  bar  to  an  action  on  a  case  of  false  and  fraudu- 
lent representations  by  a  vendor  or  pledgor  as  to  his  ownership  of 
property  sold  or  pledged.     Doran  v.  Smith,  49  Rowell,  Yt.  353. 

1791.  Material  representations  by  a  vendor  of  matters  assumed  by 
him  to  be  within  his  personal  knowledge,  made  with  intent  to  deceive 
the  vendee,  which  are  untrue  and  are  relied  upon  by  the  vendee  in 
making  the  purchase  to  his  damage,  are,  in  a  legal  sense,  false  and 
fraudulent,  although  the  vendor  did  not  know  them   to   be  untrue. 

1792.  When  a  vendor,  in  the  course  of  the  negotiations  for  a  sale^ 
authorizes  an  agent  to  make  representations  to  the  vendee  as  to  the 
quality  of  the  goods  to  be  sold,  and  recommends  the  agent  to  the  vendee 
as  one  whose  statements  are  to  be  relied  upon,  such  vendor  is  liable  for 
false  representations  made  by  the  agent. 

1793.  Although,  upon  a  sale  of  property  a  warranty  of  quality  is 
taken  by  the  vendee,  yet,  if  it  appear  that  he  was  induced  to  make 
the  purchase  and  to  take  the  warranty  in  reliance  upon  representa- 
tions on  the  part  of  the  vendor  knowingly  false  and  fraudulent,  an 
action  ex  delicto  may  be  maintained.     Indianapolis,  Peru  &  Chicago 
E.  R.  Co.,  Resps.  v.  Tyng,  AppelL,  18  Sickels,  N.  Y.  653. 

1794.  A  party  can  only  commit  a  legal  fraud  in  a  business  trans- 
action with   another  by  fraudulent  misrepresentations  of  fact,  or  by 
such  conduct  or  artifice  for  a  fraudulent  purpose  as  will  mislead  the 
other  party  or  throw  him  off  his  guard  and  cause  him  to  omit  inquiry 
or    examination    which   he   would   otherwise   make.      Dambmann   v. 
Schulting,  75  N.  Y.  55. 

1795.  A  division  of  copartnership  property  between  the  partners 
in   proportion  to  their  interests,  for  the  purpose  of  protecting  the 
property    from    seizure   by    the   individual   creditors  of  one   of  the 
partners,  is  not  unlawful,  and  cannot  be  avoided  as  a  fraud  upon  the 
individual  creditors.     By  such  a  transaction  the  other  partners  do  not 
acquire  any  of  the  property  of  the  debtor,  but  only  separate  their  own 
from  his,  so  that  their  portion  shall  not  be  interfered  with  for  his 
debts.     Atkins  v.  Saxton,  77  N.  Y.  195.     But  even  if  a  fraud  is  perpe- 
trated, the  whole  property  does  not  become  liable  to  seizure  upon  at- 
tachment at  the  suit  of  a  mechanic  who  is  simply  employed  to  execute 
some  portion  of  the  work  and  is  paid  for  his  services,  having  no  con- 
cern with  or  interest  in  the  fruits  of  the  crime,  is  not  liable  in  an  act- 
tion  ex  contractu  for  money  advanced  upon  the  forged  instrument. 
Un.  Tr.  Co.  v.  Gleason,  77  N.  Y.  400. 

1796.  It  is  no  defence  to  a  suit  for  debt  that  the  debt  arose  from 
the  receipt  of  the  bills  of  a  bank  that  was  chartered  illegally  and  for 
fraudulent  purpose,  and  that  the  bills  were  void  in  law,  and  finally 
proved  worthless  in  fact ;  the  bills  themselves  having  been  actually 
current  at  the  time  the  defendant  received  them,  and  they  not  having 
proved  worthless  in  his  hands,  nor  he  being  bound  to  take  them  back 
from  persons  to  whom  he  had  paid  them  away.     Orchard  v.  Hughes, 
1  Wall.  U.  S.  73. 

1797.  A  sale  of  personal  property,  made  much  below  its  costs,  by 


248  MONROE'S  DIGEST 

a  man  indebted  to  near  or  quite  the  extent  of  all  be  had,  set  aside  as  a 
fraud  on  creditors ;  it  having  been  made  within  a  month  after  the 
property  was  bought,  and  before  it  was  }ret  paid  for  ;  made,  moreover, 
on  Saturday,  while  the  account  of  stock  was  taken  on  Sunday  (the 
parties  being  Jews),  and  the  property  carried  off  early  on  Monday. 
Xempner  v.  Churchill,  9  Wall.  U.  S.  362. 

1798.  Where  it  appeared  that  the  drawee  of  a  bill  of  exchange 
promised  to  pay  the  amount  by  the  time  or  upon  a  contingency  named, 
•and  that  the  payee,  relying  upon  this,  permitted  the  bill  to  remain  in 
the  hands  of  the  former,  and  no  demand  or  request  for  its  return,  and  a 
denial  or  evasion  thereof  was  proved,  held,  that  the  promise  to  pay  was 
void  under  the  statute  of  frauds  (2  R.  S.,  135,  §  2),  as  it  was  an  oral 
promise  to  answer  for  the  debt  of  another.    Matteson  v.  Moulton,  79  N. 
"T.  628. 

1799.  Where  fraud  in  the  purchase  or  sale  of  property  is  in  issue, 
•evidence   of  other   frauds   of  like  character,  committed  by  the  same 
parties,  at  or  near  the  same  time,  is  admissible.     Lincoln  v.  Claflin, 
7  Wall.  U.  S.  132. 

1800.  Where  two  persons  are  engaged  together  in  the  further- 
ance of  a  common  design  to  defraud  others,  the  declarations  of  each  re- 
lating to  the  enterprise  are  evidence  against  the  other,  though  made  in 
the  latter's  absence.     Ibid. 

1801.  Equity   will  not  allow  the  statutes  of  frauds  to  be  set  up 
where  the  contract  has  been  largely  performed  on  both  sides.     Swain  v. 
Seamens,  9  Wall.  TJ.  S.  254. 

1802.  An  indictment  for  obtaining  money  by  false  pretence,  charg- 
ing that  the  money  was  obtained  by  both  a  pretence  and  a  promise,  is 
•within  the  statute,  if  the  pretence  of  a  false  existing,  or  a  past  fact  be 
sufficient.     Commonwealth  v.  Wallace,  114  Penn.  405;  Commonwealth 
v.  Adley,  1  Pearson  (Penn.)  62  ;  Commonwealth  v.  McCrosius,  2  Clart. 
<Penn.)  6. 

1803.  The  grantor  in  an  alleged  fraudulent  conveyance,  with  a  full 
knowledge  of  the  facts,  is  estopped   from   testifying  against  his  own 
warranty  of  title,  that  the  same  is  fraudulent.     Fredericks  v.  Davis,  3 
Mont.  251. 

1804.  To   render   a  conveyance  fraudulent  as  against  creditors, 
there  must  be  mutual  participation  in  the  fraudulent  intent  on  the  part 
of  both  grantor  and  grantee.     Curtis  v.  Valiton,  3  Mont.  153. 

1805.  Whosoever  sets  up  fraud  as  a  cause  of  action  must  do  more 
than  allege  fraud  on  general  and  abstract  terms  ;  he  must  set  out  the 
specific  facts  in  which  the  fraud  consists.     Kerr  v.  Steman,  72  Iowa, 
241. 

1806.  Damage  as  well  as  fraud  must  be  shown  to  entitle  a  com- 
plainant in  equity  to  relief  on  the  ground  of  fraud.     Bigly  v.  Powell, 
25  Ga.  168. 

1807.  General  plea  of  fraud  is  demurrable  under  Indiana  Code. 
The  facts  constituting  the  defence  must  be  set  out.     Keller  v.  Johnson, 
I L  Ind.  337. 


OF   STANDAED   DECISIONS.  249 


GIFT. 

1808.  To  establish  a  valid  gift,  a  delivery  of  the  subject  of  the 
*  gift  to  the  donee,  or  to  some  person  for  him,  so  as  to  divest  the  posses- 
sion and  title  of  the  donor,  must  be  shown.      Young  v.  Young,  80  N. 
Y.  422. 

1809.  To  make  a  valid  gift  in  prsesenti  of  an  instrument  securing 
the  payment  of  money,  reserving  to  the  donor  the  accruing  interest 
during  life,  without  a  written  transfer  or  declaration  of  trust,  there 
must  be  an  absolute  delivery  of  the  security  to  the  donee,  vesting  the 
entire  legal  title  and  possession  in  him,  on  his  undertaking  to  account 
to  the  donor  for  the  interest.      Young  v.  Young,  80  N.  Y.  422. 

1810.  If  the  donor  retains  the  instrument  under  his  own  control, 
though  merely  for  the  purpose  of  collecting  the  interest,  there  is  an 
absence   of  the  complete   delivery  essential   to  the  validity  of  a  gift. 

Young  v.  Young,  80  N.  Y.  422. 

1811.  So,  also,  such  a  gift  cannot  be  made  by  creating  a  joint  pos- 
session of  donor  and  donee,  even  if  it  be  with  the  intention  that  each 
shall  have  an  interest.     Young  v.  Young,  80  N.  Y.  422. 

1812.  It  is  essential  to  constitute  a  valid  gift,  that  there  should  be 
a  delivery  such   as  rests  in  the  donee  control  or  dominion  over  the 
property ;  and  absolutely  divests  the  donor,  and  the  delivery  must  be 
made  with  intent   to  vest  the  title  in  the  donee.     Jackson  v.  Twenty- 
third  St.  It.  Co.,  88  N.  Y.  520. 


GUARANTY. 

1813.  In  response  to  an  order  for  goods,  plaintiffs  replied  that 
they  would  not  deliver  them  unless  the  purchaser  would  procure  some 
one  to  guarantee  payment  for  them ;  the  purchaser  answered,  stating 
that  defendant  had  offered  to  assist  him,  and  defendant  indorsed  upon 
the  letter  his  agreement  to  the  proposition.     Held,  that  he  was  liable 
as  guarantor.      Westphal,  Hinds  &  Go.  v.  Moulton,  45  Iowa,  163. 

1814.  Where  the  guarantor  undertook  to  insure  the  payment  of 
all  indebtedness  of  his  principal  to  the  guarantee,  whether  consisting 
of  accounts,  notes,  indorsement  of  notes  or  otherwise,  the  guarantor 
was  held  to  be  liable  upon  notes  which  his  principal  transferred  to  the 
guarantee,  with  no  other  indorsement  than  simple  words  of  guaranty. 
If,  under  the  contract  of  guaranty,  the  guarantee  took  other  or  differ- 
ent notes  than  those  provided  for  in  the  contract,  or  gave  additional 
time  for  payment  to  the  principal,  or  waived  any  material  condition  on 
which  payment  was  to  be  made,  the  guarantor  was  released  from  lia- 
bility.     The  Davis  Sewing  Machine  Co.  v.  McGinnis,  et  al.,  45  Iowa, 
538. 

1815.  In  an  action  on  a  guarantee,  alleged  to  be  contained  in  a  let- 
ter  and   telegram  in  which   there  were  no  words  of  doubtful  trade 
meaning,  and  the  extrinsic  facts  not  being  in  controversy, — Held,  that 
the  question  whether  the  words  used  amounted  to  a  contract  of  guar- 
antee was  for  the  determination  of  the  court  alone.     The  following 


250  MONROE'S  DIGEST 

words  were  held  not  to  constitute  a  contract  to  guarantee  :  "  Our 
friends  H.  and  M.  have  purchased  a  cargo  from  G.  Last  year  there 
was  delay  and  trouble  owing  to  bills  of  lading  coming  in  different  lots, 
and  through  more  than  one  source,  and  without  insurance  being  per- 
fected. If  you  will  obviate  a  repetition  of  this  now  you  will  oblige  us. 
On  presentation  of  cash  order,  and  all  documents  at  Union  Bank,  pay- 
ment will  be  promptly  made.  Excuse  this  trouble."  The  Bank  of 
Montreal  v.  Munster  Bank,  Irish  Reports,  Common  Law  Series,  vol. 
11,  47. 

1816.  If  a  promissory  note  in  the  hands  of  the  payee  has  upon  its 
back  the  signature  in  blank  of  a  third  person,  the  presumption,  in  the 
absence  of  proof,  is  that  such  person  indorsed  as  a  guarantor,  but  this 
presumption  may  be  rebutted  by  clear  and  satisfactory  proof  of  a  dif- 
ferent intention. 

1817.  Proof  that  the  indorser's  name  was  put  upon  the  note  for 
the  purpose  of  becoming  liable  as  security  that  the  maker  should  be 
responsible  for  the  payment  of  the  note,  and  that  the  indorser  refused 
to   sign   as  maker,  will  not  rebut  the  presumption  of  a  contract  of 
guaranty.     83  111.  120. 

1818.  No  legal  proceedings  against  the  maker  of  a  note  are  needed 
to  fix  the  liability  of  a  guarantor,  nor  is  it  necessary  to  show  the  in- 
solvency of  the  maker,  or  to  prove  demand  or  notice  of  non-payment, 
or  to  use  diligence  against  the  maker.     Stowell  v.  Raymond,  83  111. 
120. 

1819.  In  construing  contract   of  guaranty,  general   rule  arising 
from  implication  of  language  used  is,  that  when  the  amount  of  the 
liability  is  limited,  and  the  time  is  not,  the  contract  should  be  con- 
strued as  a  continuing  guarant}*.     Matthews  v.  Phelps,  61  Mich.  327. 

1820.  W.,  who  was  engaged  in  business  as  a  pork  packer,  and  had 
been  a  borrower  from  plaintiff,  delivered  to  it  an  instrument  signed  by 
defendant ;  which,  after  seciting  that  W.  desired  to  increase  his  facili- 
ties for  obtaining  money  and  proposed  to  pledge  to  plaintiff  property 
that  might  from  time  to  time  be  in  his  possession,  to  secure  discounts 
and  loans,  guaranteed  to  plaintiff  "  all  such  pledges  of  property,  ware- 
house receipts  and  other  vouchers  "  as  may  from  time  to  time  be  given 
by  W.,  and  defendant  also  promised  as  follows :     "  That  the  property 
so  transferred  and  set  over  to  said  bank,  shall  not  be  misapplied  or  di- 
verted to  any  other  purpose  while  such  loans  or  advances  remain  un- 
paid to  said  bank,  and  if  any  default  or  misappropriation  of  the  prop- 
erty so  pledged  shall  be  made,  I  do  promise  and  agree  to  make  good 
any  deficiency,  and  fully  satisfy  the  stipulations  contained  in  said  re- 
ceipts or  other  vouchers  therefor,  without  requiring  any  notice  to  me 
of  the   several  loans  and  discounts."     Held,  that  the  guaranty  was 
simply  against   a  diversion  or  misappropriation   of  property  which 
should  be  pledged  to  plaintiff  by  W.,  and  did  not  cover  the  risk  of  a 
false  or  fictitious  pledge  ;  the  defendant  undertook  that  if  any  pledge 
was  good  when  taken  it  should  be  kept  good  thereafter,  not  that  W. 
should  actually  have  in  his  possession  the  property  which  he  should 
profess  to  pledge.     F.  and  M.  Nat.  Bank  v.  Lang,  87  N.  Y.  209. 

1821.  Defendant   set   up   as  a    counterclaim    in  this  action  and 
proved  that  plaintiff  transferred,  by  written  assignment  to  L..  defend- 
ant's testator,  an  account  against  the  estate  of  T. ;  the  assignment 


OF   STANDARD   DECISIONS.  251 

contained  an  agreement  on  the  part  of  the  assignee,  that  in  case  the 
money  received  by  him  from  L.  could  not  be  collected  from  "  the  rep- 
resentatives  of"  T.,  he  would  pay  the  same  to  L.  with  interest.  The 
claim  was  duly  presented  by  L.  to  the  executors  of  T.,  and  to  a  referee 
appointed  in  the  course  of  legal  proceedings  to  pass  upon  claim* 
against  his  estate.  After  certain  deductions  for  goods  not  delivered 
by  plaintiff,  the  balance  of  said  account  was  allowed,  and  upon  this  a 
dividend  of  twenty-five  per  cent,  was  paid.  The  real  estate  of  T.  was 
sold  in  proceedings  before  the  surrogate,  but  nothing  more  was  re- 
ceived by  L.  or  other  creditors.  Held,  that  L.  used  due  diligence  in 
exhausting  legal  remedies  ;  and  that  defendant  was  entitled  to  counter- 
claim the  balance  paid  by  L.  to  plaintiff  over  the  percentage  so  re- 
ceived, that  it  was  not  necessary  to  proceed  to  judgment  and  execu- 
tion against  the  estate  of  T.  Schmitz  v.  Langhaar,  88  N.  Y.  503. 

1822.  Where  assignor  of  order  for  money  agreed,  if  not  paid  by 
party  to  whom  addressed  in  a  certain  time,  to  pay  its  face  value,  notice 
to  assignor  of  non-pa\'ment  not  necessary  to  recovery  by  assignee. 
Gammell  v.  Parramore,  58  Ga.  54. 

1823.  The   sufficiency   of  a   complaint  founded   upon  a  "  special 
promise  to  answer  for  the  debt  or  doings  of  another,"  considered  and 
determined.     Parol  evidence  is  admissible  to  show  the  circumstances- 
under  which  such  a  promise  was  given.     The  objection  that  the  con- 
sideration for  such  a  promise  is  not  stated,  does  not  apply  to  a  guar- 
anty of  a  note  where  the  written  promise  of  the  debtor  sets  forth  a 
consideration  and  is  made  and  delivered  at  the  same  time  therewith. 
Wilson  S.  M.  Co.  v.  Schnell,  20  Minn.  40. 

1824.  The  concealment  which  will  avoid  a  guaranty  must  be  a- 
fraudulent  one ;  if  not  fraudulent  in  fact  or  in  law,  the  defence  is  not 
made  out.     Howe  Machine  Co.  v.  Farrington,  82  N.  Y.  121. 

1825.  An  action  will  not  lie  against  a  guardian's  security  until 
there  has  been  a  settlement  of  the  guardian's  account  with  the  court, 
and  a  failure  to  pay  as  ordered.    O'Brien  v.  Strong,  42  Iowa,  643  ;  alsor 
Gillespie  v.  Lee,  72  Iowa,  346. 

1826.  A  consideration  is  necessary  to  render  a  special  guaranty 
valid ;  and,  although  it  is  not  essential  that  it  should  be  expressed  in. 
the  written  contract  itself  (chap.   464,  Laws  of  1863),  if  it  is  not  so 
acknowledged  it  must  be  proved  in  order  to  recover  on  the  contract. 
JSvansville  Nat^  Bank  v.  Kaufmann,  93  N.  Y.  273. 

1827.  To  constitute  a  valid   guaranty,  there  must  be  a  sufficient 
consideration,  a  delivery  by  the  guarantor,  an  acceptance  by  the  per- 
son to  whom  it  is  given,  a  subsequent  delivery  of  goods  or  other  prop- 
erty   under   and  in  accordance  with  its  terms,  and  if  it  is  collateral,  re- 
quest of  payment  and  notice  of  non-payment.     Notice  is  not  necessary 
when  the  undertaking  is  absolute.     Marsh  v.  Putney,  56  N.  H.  34. 

1828.  Where  the  person,  for  whose  benefit  the  guaranty  is  given, 
becomes   insolvent,  so  that  no  advantage  can  arise  to  the  guarantor, 
notice  is  unnecessary.      Ibid. 

1829.  All  promises  to  answer  for  the  debt  or  default  of  a  third  per- 
son  must  be  in   writing,  whether  the  promise  be  made  before,  at  the 
time,  or  after  the  debt  or  liability  is  created.     In  the  absence  of  words 
or  circumstances  showing  a  contrary  intent,  the  words  "  we  will  see 
the  articles  paid   for,"  or  equivalent  words,  import  a  collateral  under. 


252  MONROE'S  DIGEST 

taking,  and  are  within  the  statute  of  frauds.      Wager,  et  al.  v.  Halleck^ 
etal,  3  Colo.  176. 

1830.  Where  the  language  of  a  guaranty  addressed  to  a  factor  is, 
•*'  I  am  willing  to  go  his  security  for  the  amount  of  twentj'-five  hun- 
dred dollars,"  it  is  not  what  is  termed  a  continuing  guaranty.     It  only 
embraces  the  first  $2,500  of  money  advanced,  or  goods  furnished  to 
the    person  in   whose  favor  the  guaranty  is  given.     The  factor  thus 
guaranteed  is  legally  bound  to  apply  to  the  guaranteed  debt,  and  for 
the  discharge  of  the  guarantor,  the  first  payments  received  by  him 
from  the  person  in  whose  favor  the  guai'anty  was  given.     Ben.  Gerson 
v.  G.  W.  &  G.  M.   Hamilton,  30  La.  737. 

1831.  A.,  a  bank,  had  discontinued  the  note  of  B.  for  $10,000.     C. 
had   deposited  with  A.  for  collection  a  note  for  $15,000,  secured  by 
deed  of  trust.     C.  subsequently  wrote  the  president  of  A.  that,  having 
heard  that  B.  "  could  use  advantageously  some  additional  cash  over 
And  above  the  amount  already  had  of  your  bank,"  etc.,  "  if  your  bank 
will  lend  to    B.    $15,000,   I    shall   hold   myself  responsible   for   that 
amount,  and  will  leave  with  you  as  collateral  security  the  note  and 
mortgage "     *     *     *     "at   present    in  your  vault."     The    proposal 
contained  in  his  letter  was  accepted,  of  which  C.  had  due  notice,  and 
B.  drew  his  check  on  A.  for  $10,000,  and  took  up  his  note  for  $10,000. 
Held,  that  $15,000  was  the  amount  which  C.  guaranteed  to  pay,  and 
not  $15,000  in  addition  to  what  B.  had  before  received  of  A. ;  that  the 
fact  that  the  money  was  had  of  A.,  to  whom  B.  owed  a  note  of  $10,- 
000,  and  that  he  paid  this  note  out  of  the  $15,000  so  advanced,  made 
no  difference  in  his  case  ;  and  that  the  terms  of  the  guarantee  were 
•complied  in  his  case  ;  and  that  the  terms  of  the  guarantee  were  com- 
plied  with  by   A,     A   contract   of  guarantee   must   be   strictly   con- 
strued, yet  must  be  so  construed  as  to  carry  into  effect  the  evident  in- 
tention of  the  parties,  as  it  is  to  be  gathered  from  the  instrument  itself. 
Allen,  Adirir  v.  Central  Savings  Bank,  4  Mo.  St.  Appeals  (St.  Louis) 
66. 

1832.  The  guarantor  of  a  note  is  not  discharged  from  liability  by 
reason  of  the  failure  to  serve  him  with  notice  of  non-pa3rment,  unless 
he  can  show  that  he  suffered  detriment  thereby.     Bodabaugh  v.  Pitkin, 
46  Iowa,  544. 

1833.  The  words  "  we  hereby  agree  to  guaranty  the  payment  to 
M.  H.  &  Co.  for  any  goods  which  may  be  purchased  of  them    by  A. 
W.  of  Lynn,  not,  however,  binding  ourselves  to  become  responsible  for 
a   larger   sum  than  five  hundred  dollars,  except   by  another  special 
agreement.     The   above  guaranty   to  remain  in  force  until  its  with- 
drawal by  us."     Held,  that  the  contract  sued  on  clearly  appears  upon 
its  face  to  have  been  intended  to  be  a  continuing  guaranty.     The  ques- 
tion  of  fact  of  extinguishment  or  discharge  has  been  decided  by  the 
court  below  in  favor  of  plaintiffs.     Melendy,  et  al.  v.  Capen,  120  Mass. 
222.  Cases  referred  to:  1  Mete.  24  ;  12  Gray,  447—119  Mass.  435. 

1834.  The  words  of  a  guaranty  will  be  read  most  strongly  against 
the  guarantor.     Hoey  v.  Jarman,  39  N.  J.  Law,  523. 

1835.  The  following  instrument,  signed  by  the  defendant,  was  de- 
livered to  the  plaintiff:     "  I    guarantee  the  sum  five  hundred  dollars 
value  in  glass  shades  purchased  by  my  son  A.  from  B.    Terms  of  pur- 
chase  to  be   sixty  days  from  date  of  invoice,  and  if  not  paid  within 


OF  STANDARD   DECISIONS.  25£ 

ninet}'  days,  draft  to  be  drawn  on  me  for  the  amount."  Held,  that  it 
was  not  a  continuing  guaranty.  Held  also,  that  parol  evidence  of  the 
previous  dealings,  or  of  the  dealings  contemplated,  between  the  credi- 
tor and  the  principal  debtor,  or  that  the  grantor  had  previously  agreed 
to  give  the  plaintiff' a  guaranty  for  future  advances,  and  that  the  goods 
were  sold,  relying  on  such  guaranty  ;  or  that  the  relations  of  the  prin- 
cipal parties  were  well  known  to  the  guarantor,  was  not  admissible  to 
show  that  the  instrument  was  other  than  a  guaranty  of  a  single  trans- 
action. Boston  and  Sandwich  Glass  Co.  v.  Moore,  119  Mass.  435. 

1836.  An  oral  guaranty  of  the  payment  of  the  note  of  a  third 
person,  the  court  held  the  defendant  was  doubtless  once  liable  for  the 
goods  sold  and  delivered  to  him,  and  upon  the  due  bill  which,  upon 
paying  part  of  the  price  of  the  goods,  he  gave  to  the  plaintiffs  for  the 
balance;  but  upon  his  procuring  and  delivering  to  them  the  note  of" 
Robinson,   as  the  bill  of  exceptions  states,  "  they  at  the  same  time 
gave  up  the  said  due  bill  to  him  in  settlement,"  and  he  orally  promised 
to  pay  Robinson's  note  at  maturity,  if  Robinson  did  not.     The  claim 
of  the  plaintiffs,  and  the  finding  of  the  court  did  not  proceed  upon  the 
defendant's  liability  for  goods  sold,  but  solely  upon  this  oral  promise 
of  his,  thereby  necessarily  assuming  that  his  previous  liability  had 
been  settled  and  discharged  by  the  giving  and  receiving  of  the  note  of 
Robinson.     Upon  this  state  of  facts,  the  only  direct  liability  was  that 
of  Robinson  upon  his  note,  and  the  oral  promise  of  the  defendant  to 
pay  the  note,  if  R.  did  not,  was  a  collateral  promise  to  pay  R's  debtr 
and  as  such  within  the  statute  of  frauds.     Dows  v.  Swett,  120  Mass. 
322.     Cases  recited  :  3  Mete.  396  ;  106  Mass.  400  ;  108  Mass.  246  ;  111 
Mass.  SOI. 

1837.  Defendant  gave  to  C.  &  D.  a  separate  written  agreement  to- 
assurae  at  maturity  a  share  of  the  outstanding  notes  of  R.  given  for 
his  purchase  money.     The  defendant  was  jointly  interested  with  Cur- 
rier &  Dean  in  the  purchase  of  a  quarry.     Advancements  had  been 
made,  and   expenses  incurred  by  the  latter  in  the  purchase  and  im- 
provement of  the  same,  and  part  had  been  sold  to  one  Richmond,  and 
his  notes  taken  in  payment.     The  defendant,  in  a  settlement  with  Cur- 
rier &  Dean,  was   charged  with  his  share  of  the  expenses  and  of  the 
original  cost,  and  credited  with  the  part  sold.     The  balance  was  paid 
to  him  by  C.  and  D.,  who  also  gave  him  the  written  agreement  to  pay 
and  save  him  harmless  from  an  outstanding  joint  note  for  the  pur- 
chase money.     The  defendant,  on  his  part,  at  the  same  time  gave  C. 
and   D.  the  written  agreement  aforesaid  with  regard  to  the  notes  of 
Richmond,  given  for  his  purchase  of  a  part  of  the  quarry.     This  ac- 
tion is  brought  on  the  last  named  agreement,  by  the  assignees  in  bank- 
ruptcy of  Currier  and  Dean,  to  recover  a  balance  unpaid  on  one  of  the 
Richmond  notes,  which  became  due  in  1868.     The  defendant  offered  to 
prove   that  he  had  no  notice  of  the  non-pa3rment   of  this  note  until 
about  the  time  of  the  commencement  of  this  action,  and  that  for  more 
than   two  years  after  the  note  fell  due  Richmond  was  in  good  creditr 
and  could  have  paid  it,  but  C.  and  D.  voluntarity  gave  him  time  upon 
it.     The  court  ruled  that  the  evidence  would  not  amount  to  a  defence; 
and  the  only  question  is  whether  the  promise  declared  on  is  an  origi- 
nal promise  of  the  defendant  to  pay  his  own  debt,  or  only  a  guaranty 
of  the   debt  of  another.     In  the  opinion  of  the  court  it  is  the  latter. 


254  MONROE'S  DIGEST 

The  fact  that  the  defendant  derives  benefit  from  the  transaction  is  not 
alone  enough  to  make  it  an  original  promise,  for  there  must  always  be 
some  consideration  to  support  a  mere  collateral  undertaking.  It  is 
sufficient  if  the  leading  object  of  the  contract,  as  ascertained  from  the 
terms  of  it,  is  one  of  suretyship.  By  these  tests  it  is  clear  that  the  de- 
fendant's promise  in  this  case  was  intended  to  be  collateral  to  the  orig- 
inal principal  obligation  of  another.  The  agreement  was  a  guaranty, 
and  not  an  original  promise.  Davis  v.  C 'aver ly ,120  Mass.  414;  also,  98 
Mass.  296;  106  Mass.  400;  and  118  Mass.  137,  and  a  failure  to  collect 
of  him  by  those  means  are  conditions  precedent  to  the  liability  of  the 
guarantor  ;  and  to  these  the  law,  as  established  by  numerous  decisions, 
attaches  the  further  condition  that  due  diligence  be  exercised  by  the 
•creditor  in  enforcing  his  legal  remedies  against  the  debtor.  These 
rules  are  well  settled,  and  are  not  controverted,  and  the  only  question 
is  to  which  class  of  guaranties  the  one  now  before  us  belongs.  It  is 
apparent  upon  the  face  of  the  instrument  that  the  undertaking  of  the 
defendant  was  not  an  unconditional  one  that  the  mortgagor  should 
pay,  or  that  the  guarantor  would  pay  on  default  of  the  mortgagor,  but 
only  that  the  guarantor  would  pay  in  case  of  a  deficiency  arising  on  a 
foreclosure  and  sale.  The  foreclosure  and  sale  were  consequent!}'  con- 
ditions precedent,  and  the  general  principle  is  that  whenever  a  condi- 
tion precedent  is  to  be  performed  for  the  purpose  of  establishing  the 
liability  of  a  surety  or  guarantor,  such  condition  must  be  performed  in 
good  faith,  and  with  due  diligence.  The  delay  in  foreclosing  in  the 
present  case  was  fourteen  months  after  the  mortgage  debt  became  due. 
During  upward  of  ten  months  of  this  time  the  property  was  a  suf- 
iicient  security,  but  afterward  the  buildings  thereon  were  destroyed  by 
fire,  and  the  value  reduced  below  the  amount  of  the  mortgage  debt. 
It  cannot  be  questioned  that  this  delay  was  sufficient  to  constitute 
laches.  See  Craig  v.  Parkis  (40  N.  Y.  181),  a  delay  of  six  months 
in  foreclosing  a  bond  and  mortgage  was  held  to  be  laches,  which  dis- 
charged a  guaranty  of  its  collection.  McMurray,  et  al.  v.  Noyes,  72 
N.  Y.  App.  523. 

1838.  Upon  assigning  a  bond  and  mortgage,  the  defendant  made 
the  following  guaranty  :  "  I  hereby  covenant     *     *     *     that,  in  case 
of  foreclosure  and  sale  of  the  mortgaged  premises  in  said  mortgage, 
if  the  proceeds  of  such  sale  shall  be  insufficient  to  satisfy  the  same, 
with  the  costs  of  foreclosure,  I  will  pay  the  amount  of  such  deficiency 
to  the  said  party  of  the  second  part,  or  its  assigns,  on  demand."     Held, 
the  fundamental  distinction  between  a  guaranty  of  payment  and  one 
of  collection  is,  that  in  the  first  case  the  guarantor  undertakes  uncon- 
ditionally that  the  debtor  will  pay,  and  the  creditor  may,  upon  default, 
proceed  directly  against   the  guarantor,  without  taking  any  steps  to 
collect  of  the  principal  debtor,  and  the  omission  or  neglect  to  proceed 
against  him  is  not  (except  under  special  circumstances)  any  defence  to 
the  guarantor  ;  while  in  the  second  case  the  undertaking  is  that  if  the 
demand  cannot  be  collected  by  legal  proceedings,  the  guarantor  will 
pay,  and  consequently  legal  proceedings  against  the  principal  debtor. 

1839.  Due  diligence  in  exhausting  the  legal  remedies  against  the 
principal  debtor  is   a  condition  precedent  to  any  liability  against  a 
guarantor  of  collection.     No.  F.  Ins.  Co.  v.  Wright,  76  N.  Y.  445. 

1840.  Plaintiff's  complaint  alleged,  in  substance,  the  following 


OF   STANDARD   DECISIONS.  255 

facts  :  Plaintiff  and  defendants'  firm,  W.  P.  C.  &  Co.,  were  competitors 
as  carriers  by  water  between  N.  Y.  and  P.,  each  owning  vessels  em- 
ployed in  the  business.  To  consolidate  the  business,  they  entered  into 
an  agreement  to  form  a  corporation,  the  capital  to  be  represented  by 
vessels  furnished  by  the  parties  respectively,  at  a  valuation  fixed,  each 
to  contribute  one-half  the  capital  and  to  receive  one-half  the  stock  ; 
W.  P.  C.  &  Co.,  to  have  the  management  of  the  corporation  and  busi- 
ness, to  manage  the  same  in  good  faith  and  with  economy,  and  to  re- 
ceive the  usual  commissions,  which  were  specified,  on  the  freight  car- 
ried. In  consideration  whereof  said  firm  guaranteed  to  plaintiff  an 
annual  dividend  of  seven  per  cent,  for  seven  3'ears.  In  pursuance  of 
said  agreement  "  the  corporation  was  duly  organized  under  the  laws 
of  this  State,"  the  vessels  transferred  to  it,  stock  issued,  and  the  con- 
tract fully  performed  on  the  part  of  plaintiff.  Said  firm  had  had  the 
•exclusive  management  of  the  corporation  and  business,  but  no  divi- 
dends had  been  declared  or  paid.  Plaintiff  claimed  to  recover  on  the 
guaranty.  Defendants  demurred,  claiming  the  agreement  to  be  illegal, 
because  the  parties  thereto  were  but  five  in  number,  while  the  statute 
•contemplates  that  at  least  seven  persons  shall  unite  in  forming  a  cor- 
poration. Held,  untenable ;  as  the  complaint  alleges  the  due  organi- 
zation of  the  corporation,  which  imports  the  requisite  number  of  cor- 
porators ;  that  it  was  not  necessary  to  aver  the  precise  steps  taken  to 
.accomplish  the  result.  Lorrilard  v.  Clyde,  86  N.  Y.  384. 

1841.  P.   and  K.,  a  firm  of  which  defendant  was  a  partner,  exe- 
cuted to  a  State  bank  a  written  undertaking  to  be  "  responsible  for  the 
payment  of  any  sum  not  to  exceed  "  $5,000,  which  W.  might  require 
of  said  bank  "  for  legitimate  business  purposes."     In  an  action  upon 
the  guaranty,  held,  that  it  expressed  a  sufficient  consideration  to  vali- 
date it  under  the  statute  of  frauds  ;  and  that  it  was  a  continuing  guar- 
anty.    City  Nat.  Bank  v.  Phelps,  86  N.  Y.  484. 

1842.  Also  held,  the  fact  that  the  money  procured  by  W.,  upon 
the  strength,,  of  the  guaranty,  was  not  used  by  him  in  his  business, 
was  no  defence,  in  the  absence  of  evidence  that  such  other  use  was 
•with   the   knowledge   of  the   bank,  or  that  the  bank  advanced  more 
money  than  was  needed  for  his  legitimate  business  purposes,  or  that  it 
*was  loaned  for  other  than  those  purposes ;  that  the  bank  was  not  re- 
quired to  see  to  the  use  made  by  W.  of  the  money.     City  Nat.  Bank 
v.  Phelps,  86  N.  Y.  484. 

1843.  Also  held,  that  no  notice  to  defendant,  of  the  acceptance  of 
the  guaranty,  was  necessary.      City  Nat.  Bank  v.  Phelps,  86  N.  Y. 
484. 

1844.  Also  held,  that  the  statute  of  limitations  did  not  begin  to 
run  against  the  guaranty  from  the  date  of  the  first  loan  under  it ;  that 
•every  authorized  renewal  of  the  first  advance  kept  alive  the  indebted- 
ness, and  so  as  to  every  authorized  subsequent  advance.     City  Nat. 
Bank  v.  Phelps,  86  N.  Y.  484. 

1845.  Also  held,  that  the  liability  created  by  the  guaranty,  being 
that  of  a  firm,  was  joint,  and  that  notice  to  the  bank  of  the  dissolution 
of  the  firm  determined  its  right  to  loan  on  the  faith  of  the  guaranty, 
or  to  make  further  renewals  of  existing  obligations.     City  Nat.  Bank 
v.  Phelps,  86  N.  Y.  484. 

1846.  The  said  State  bank,  after  loans  had  been  made  to  W.,  upon 


256  MONROE'S  DIGEST 

the  faith  of  the  guaranty,  abandoned  its  State  organization,  and  was 
reorganized  as  a  national  bank,  as  authorized  by  the  act  of  1865 
(chap.  97,  Laws  of  1865.)  A  portion  of  said  loans  had  not  been  paid, 
new  notes  having  been  given  in  renewal.  Held,  that  for  whatever  sum 
the  defendant  was  bound  to  the  State  bank,  when  it  was  reorganizedr 
that  indebtedness  passed  to  plaintiff;  and,  conceding  that  plaintiff 
could  not  renew  without  the  assent  of  defendant,  or  make  fresh  ad- 
vances and  still  hold  him  liable,  it  had  the  right  to  enforce  the  liability 
to  the  State  bank.  City  Nat.  Bank  v.  Phelps,  86  N.  Y.  484. 

1847.  It  appeared  that  defendant  knew  of,  and  assented,  in  writ- 
ing and  orally,  to  the  renewal.     Held,  that  he  was  concluded  thereby 
from  claiming  that  the  sureties  were  discharged  by  extension  of  time. 
City  Nat.  Hank  v.  Phelps,  86  N.  Y.  484. 

1848.  The  complaint  averred  that  the  guaranty  was  to  the  plain- 
tiff instead  of  to  its  predecessor,  the  State  bank.     The  complaint  was 
dismissed  on  trial.     It  did  not   appear  that  the  failure  to  sustain  the 
complaint  by  proof,  in  this   respect,  was  made  or  relied  upon  at  the 
trial.     Held,  that  while,  if  the   point   had  been  specifically  taken,  and 
the  dismissal  had  been   placed  upon  that  ground,  and  there  had  been 
no  motion  made  and  denied  for  an  amendment,  the  ruling  might  be 
sustained,  it  could  not  be  presumed  that  the  trial  court  placed  its  de- 
cision upon  a  ground  so  little  affecting  the  merits.     City  Nat.  Sank  v. 
Phelps,  86  N.  Y.  484. 

1849.  Also  held,  that,  conceding   the  statute  of  limitations  was  & 
bar  to  an  action  against  K.,  the  bar  did  not  apply  in  favor  of  defend- 
ant because  of  his  admission,  in  writing,  of  the  continuance  of  the 
indebtedness  (Code  of  Procedure,  §  110  ;  Code  of  Civil  Procedure,  § 
395);  and,  although  the  original   obligation  was  joint,  defendant's  in- 
dividual  action   has   continued    the    liability,  or   created   a   new  one 
against  him  alone.     City  Nat.  Bank  v.   Phelps,  86  N.  Y.  484. 


OF   STANDARD   DECISIONS.  257 


HOMESTEAD. 

1850.  Under  the  Code  of  1851  and  Revision  of  1860,  the  home- 
stead  could  be  sold  only  to  supply  a  deficiency  existing  after  exhaust- 
ing the  other  property  of  the  debtor  liable  to  execution,  whether  the 
debt  existed  before  the  purchase  of  the  homestead,  or  was  contracted 
afterward  and  secured  by  mortgage  on  the  homestead.     A  mortgage 
upon  the  homestead  was  of  no  validity  unless  both  husband  and  wife 
united  in  the  execution  and  the  record  of  it,  therefore,  imported  no 
notice  to  a  subsequent  purchaser.     Higley  &  Co.  v.  Millard,  et  aZ.,  45 
Iowa,  586. 

1851.  A  mortgage  on  property  exempt  under  the  homestead  act 
cannot  be  enforced  ;  and  the  owner   of  such  property  may  sell  the 
same  free  from  the  mortgage  he  has   imposed  on  it.     Jacob  C.  Van. 
Wickle  v.  Acee   Landry,  29  La.  330. 

1852.  A  deed  in  ordinary  form,  executed  by  husband  and  wifey 
which  contains  no  waiver  of  the  homestead  right,  is  sufficient  to  pass- 
the  title  of  the  grantors  to  lands  occupied  by  them  as  a  homestead  un- 
der the  act  to  provide  homesteads  in  Colorado  (R.  S.  285.)     Drake  v. 
Root,  2  Colo.  685. 

1853.  A  claim  for  homestead  exemption,  in  order  to  avail  against 
a  debt,  must  rest  upon  a  deed  executed  anterior  to  the  creation  of  the 
debt.     (Wagn.  Stat.  698,  §  7.)     Lincoln  v.  Rowe,  64  Mo.  138. 

1854.  Unless  one  abandons  his   homestead  right  in  a  house,  he 
does  not  lose  it  by  living  temporarily  in  a  rented  house,  especially  if 
he  has  left  part  of  his  furniture  in  it.     So   held,  where  the  owner  was 
absent  on  business  for  two  years  and  kept  his  family  with  him.     The 
duration  of  a  man's  absence  from  his  own  house  does  not  of  itself  sup- 
ply a  conclusive  presumption  that  he  has  abandoned  it  as  a  homestead. 
Bunker  v.  Paquette,  37  Mich.  79. 


HUSBAND  AND  WIFE. 

1855.  When  a  wife  executing  a  mortgage  at  the  instance  and 
upon  the  representations  of  her  husband,  will  not  be  permitted  to 
avoid  the  same  on  the  ground  of  deception,  or  mistake.     It  is  the 
right  of  the  wife  to  demand  that  every  paper  presented  to  her  for  her 
signature   be   fully  read   and   explained  to  her;  and  if  she  omits  to 
claim  or  exercise  such   right,  and  executes  the  paper  solely  upon  the 
representations  of  her  husband,  she  does  so  at  her  peril.     Roach  v. 
Karr,  18  Kan.  529. 

1856.  A   husband,   having   reduced   to   his   possession    funds   to 
which  he  became  entitled  in  right  of  his  wife,  cannot  subject  them  to  a 
voluntarily  trust  for  the  wife  to  the  prejudice  of  his  creditors.     Rus- 
sell, et  al.  v.  Thatcher,  et  al,  2  Del.  320. 

1857.  The   husband    becomes   the   absolute   owner   of  the   wife's 
legacy,  and  may  dispose  of  it.     Jacks  v.  Adair,  31  Ark.  616. 

1858.  A  husband  cannot  loan  money  to  his  wife,  both  being  in- 
solvent.    All  property  is  held  subject  to  the  payment  of  the  debts  of 

17 


258  MONROE'S  DIGEST 

the  owner,  except  in  so  far  and  to  the  extent  only  that  it  has  been 
specifically  exempted.  The  income  derived  from  the  homestead  is  not 
likewise  exempt  from  liability  for  the  owner's  debts,  and  all  acquisi- 
tions of  property  derived  from  such  income  are  subject  to  sale  under 
execution  against  the  debtor ;  and  the  same  is  true  of  the  natural  in- 
crease of  personal  property  set  apart  to  the  debtor  as  exempt  from 
sale  under  execution.  The  homestead  law  does  not  vest  in  the  owner 
any  new  rights  of  property  ;  it  only  imposes  a  restriction  upon  the 
creditor  that  in  seeking  satisfaction  of  his  debts,  he  should  leave  to  the 
debtor  untouched  five  hundred  dollars  of  his  personal  and  one  thou- 
sand dollars  of  his  real  estate.  Citizens'  Nat.  Bank  v.  Green,  78  N.  C. 
247. 

1859.  A  bill  was  filed  against  &feme  covert  and  her  trustee  for  the 
purpose  of  charging  her  separate  estate  with  a  lien  for  materials  fur- 
nished by  the  complainants  for  the  improvement  of  the  same  ;  the  bill 
did  not  aver  that  there  was  any  contract  by  her  to  bind  her  separate 
estate,  or  any  intention  on  her  part  to  create  a  charge  or  specific  lien 
thereon  for  the  payment  of  the  complainant's  claim.     On  demurrer  to 
the  bill,  it  was  held,  that  the  bill  stated  no  case  entitling  the  complain- 
ants to  relief  in  equity,  and  that  the  demurrer  be  sustained.     In  order 
to  charge  the  debts  contracted  by  a  married  woman  upon  her  separate 
estate  as  a  lien  in  equity,  it  is  necessary  that  it  should  affirmatively 
appear,  that  her  contract  was  made  with  direct  reference  to  her  sepa- 
rate estate,  and  that  it  was  her  intention  to  charge  the  same.      Wilson 
&  Hunting  v.  Jones,  et  aL,  46  Md.  349. 

1860.  When  a  conveyance  is  made  by  a  husband,  through  a  third 
person,  to   his  wife,  which   is  fraudulent  as  to  the  creditors  of  the 
husband,  and  the  wife  is  a   party  to  the  fraud,  she  is  not  entitled  to 
protection  for  any  sum  paid  or  liability  incurred  by  her ;  the  convey- 
ance is  absolutely  void,  and  is  not  permitted  to  stand  as  security  for 
any  purpose  of  indeinity  or  reimbursement.     Davis  v.  Leopold,  87  N. 
Y.  620. 

1861.  The  common-law  rule  that  where  land  is  deeded  to  husband 
and  wife,  they  each  become  seized  of  the  entirety,  and  on  the  death  of 
either  the  whole  survives  to  the  other,  was  not  abrogated  by  the  acts 
in  relation  to  married  women.     Zorntlein  v.  Bram,  100  N.  Y.  12. 

1862.  It  seems,  also,  that  said  rule   was  not  done  away  with  by 
the  act  of  1880  (chap.  472,  Laws  of  1880),  allowing  the  husband  and 
•wife  to  make  division  between  themselves  of  land  so  held.     Zorntlein 
v.  Bram,  100  N.  Y.  12. 

1863.  Before  assignment  of  dower,  a  widow  has  no  estate  in  the 
lands  of  her  husband  ;  her  right  is  a  mere  chose  in  action.     Ackman  v. 
Harwell,  98  N.  Y.  86. 

1864.  The  receipt  by  the  widow  of  one-third  of  the  rent  of  real 
estate,  in  lieu  of  dower,  for  several  years  after  the  death  of  her  hus- 
band, does  not  constitute  an  assignment  of  dower,  or  bar  her  action 
thereon.     Ibid. 

1865.  To  constitute  an  assignment  of  dower,  by  agreement  or 
specific  act  of  the  widow,  it  should  be  clearly  manifest  that  such  was 
the  intention.     Ibid. 

1866.  No  particular  phraseology  is  necessary  to  create  a  separate 
estate  for  a.  feme  covert.     In  whatever  language  expressed,  if  there  is 


OF   STANDARD   DECISIONS.  259 

A  clear  intent  of  the  parties  to  create  the  estate  it  is  created.     Prouty 
v.  Roby,  15  Wall.  U.  S.  471. 

1867.  A  married   woman  has  the  same  power  as  a  feme  sole  to 
pledge  rents  settled  in  trust  for  her  to  receive,  take  and  enjoy  them  to 
lier  sole  and  exclusive  use  and  benefit.     Cheever  v.  Wilson,  9  Wall. 
108. 

1868.  Under  a  conveyance  to  a  husband  and  wife  jointly,  they 
take,  not  as  tenants  in  common  or  as  joint  tenants,  but  as  tenants  by 
the  entirety,  and  upon   the  death  of   either,  the  survivor  takes  the 
whole  estate.     Bertles  v.  Nunan,  92  N.  Y.  152. 

1869.  To  secure  the  joint   bond  of  a  husband  and  wife  they  exe- 
cuted their  mortgage  to  C.  upon  lands  owned  by  the  wife  alone.     She 
thereafter  conveyed  the  mortgaged  premises  to  her  son  who,  in  an  ac- 
tion to  foreclose  the  mortgage,  brought  by  an  assignee  of  the  mort- 
gagee, interposed  the  defence  of   usury  ;    the  mortgagors  did  not  de- 
fend.    The  mortgagee  died  previous  to  the  trial.     This  took  place  in 
1878,  when  the  original  section   830  of  the  Code  of  Civil  Procedure 
"was  in  force,  which  provided  in  substance,  that  where  a  party  cannot 
be  examined  as  a  witness  concerning  a  transaction  with  a  deceased 
person  under  section  829,  the  husband  or  wife  of  said  party  cannot  be 
•examined  concerning  the  same   transaction.     Upon  the  trial  the  son 
called  his  father,  who  negotiated  the  loan  with  the  mortgagee,  as  a  wit- 
ness solely  in  his  own  behalf,  to  prove  the  usury.     Held,  that  as  the 
mother,  to  whose  title  the  son  succeeded,  would  have  been  precluded 
from  testifying  in   his  behalf  as  to  the  transaction  with  the  deceased, 
the  testimony  of  the  father  was  properly  excluded.      Whitehead  v. 
Smith,  81  N.  Y.  151. 

1870.  The  personal  acquisitions  of  a  wife,  in  Georgia,  being  by 
statute  of  that  State  not  subject  to  the  debts  of  her  husband,  her  sep- 
arate earnings  from  her  individual  labor  and  business  carried  on  with 
his  assignees  in  bankruptcy.     Glenn,  et  al.  v.  Johnson,  et  al.,  18  Wall. 
U.  S.  476. 

1871.  Covenants  for  wife's  separate  maintenance,  through  trustees, 
Talid ;  and  not  the  less  so  because  containing  a  provision  looking  to 
reunion.      Walker  v.  Walker,  9  Wallace,  U.  S.  743. 

1872.  Husband  may  be  chargeable  as  trustee  for  his  wife  for  her 
•separate  income  received  by  him  for  investment  and  not  invested. 
Ibid. 

1873.  Where,  at  the  time  of  the  execution  of  a  promissory  note, 
in  the  usual  form,  by   a  married  woman,  she  executes  another  paper 
appended  thereto,  declaring  her  intent  to  charge  her  separate  estate 
with  the  payment  of  the  note,  the  two  instruments  are  to  be  construed 
as   one,  and   the  note  may   be  enforced  against  her.      Treadwell  v. 
Archer,  76  N.  Y.  196. 

1874.  Deposit  by  husband  in  name  of  wife  belongs  to  her.     Mc- 
Graw  v.  Tatham,  (Mem.)  84  N.  Y.  677. 

1875.  In  order  to  defeat  a  settlement  by  a  husband  upon  his  wife, 
it  must  be  intended  to  defraud  existing  creditors,  or  creditors  whose 
rights  are  expected  shortly  to  supervene,  or  those  whose  rights  may 
and  do  supervene.     Smith,  et  al.  v.  Vodges  Assignee,  92  U.  S.  183. 

1876.  Property   conveyed   to  the  wife,  for  which   payment  was 
made  out  of  the  husband's  property  is  not  liable  to  be  taken  under  the 


260  MONROE'S  DIGEST 

provisions  of  R.  S.  c.  61,  §  1,  upon  an  execution  recovered  against 
the  husband  upon  several  debts,  some  of  which  accrued  before  and 
some  after  the  conveyance.  When  a  creditor  unites  two  classes  of 
claims  against  his  debtor  in  one  suit,  and  obtains  judgment  therein 
upon  them,  he  reduces  that  in  which  his  rights  are  superior  to  the 
level  of  that  in  which  they  are  inferior.  Reed  v.  Woodman,  4  Me.  400  ;. 
also,  Usher  v.  Hazeltine,  5  Me.  471;  Miller  v.  Miller,  23  Me.  22  j 
Qximbu  v.  Dill,  40  Me.  538  ;  Holmes  v.  Farris,  63  Me.  318. 

1877.  The  other  creditors  of  a  husband  cannot  complain  that  he 
prefers  to  discharge  a  debt  to  his  wife  rather  than  those  to  them,  nor 
•will  the  relation  of  the  parties,  nor  the  fact  that  her  claim  is  barred  by 
the  statute  of  limitations,  be  conclusive  evidence  of  bad  faith.     French 
v.  Motley,  63  Me.  326. 

1878.  In  an  action  against  husband  and  wife  for  necessaries  fur- 
nished on  the  credit  of  the  wife,  the  plaintiff,  in  order  to  recover  judg- 
ment, need  not  prove  that  the  husband  has  no  propertjr  or  is  insolvent 
or  refuses  to  support  his  family.     To  recover  judgment  against  the 
husband,  it  is  necessary  only  to  prove  that  the  debt  was  contracted  by 
the  wife  for  necessaries  for  the  support  of  the  family  of  the  husband 
and  wife.     Rigoney  v.  Nieman,  73  Penn.  330. 

1879.  A  wife  may  mortgage  her  estate  to  secure  future  as  well  as 
present  indebtedness  of  her  husband.     Haffey  v.  Carey,  73  Penn.  431. 

1880.  Husband  and  wife  are  incapable  of  contracting  with  each 
other.     Pillow  v.  Wade  and  wife,  et  al.,  31  Ark.  678. 

1881.  A  voluntary  conveyance  of  land  made  by  a  husband  to  his 
wife,  through  the  intervention  of  a  trustee,  will  not  be  held  void  as  to 
future  creditors  on  the  mere  ground  that  the  husband  subsequently 
became  insolvent.     Such  conveyance  will  be  set  aside  at  the  suit  of  a 
subsequent  creditor,  only  on  proof  that  it  was  made  with  intent  on  the 
part  of  the  grantor  thereby  to  defraud  such  subsequent  creditor  or 
creditors.     One   having   a   valid   cause  of  action,  sounding  in  tort,, 
against  such  grantor  at  the  time  of  such  conveyance  upon  which  an 
action  was  subsequently  brought  and  judgment  recovered,  is  to  be  re- 
garded as  a  subsequent  creditor.     Evans  v.  Lewis,  30  Ohio,  11. 

1882.  Personal  covenants  in  the  husband's  mortgage  do  not  bind 
the  wife,  although  she  joined  in  the  mortgage  of  her  husband's  prop- 
erty.    A  wife's  covenant  in  her  husband's  deed  is  a  mere  nullity. 
EitchM  v.  Mudgett,  et  aL,  37  Mich.  81. 

1883.  Wife  not  liable  for  deficiencies  on  foreclosure  of  a  mortgage 
from  her  husband  and  herself.     Howe,  et  al.  v.  Lemon,  et  ux.,  37 

164. 


OF   STANDARD   DECISIONS.  261 


INDEMNITY. 

1884.  Where  the  owner  of  real  estate,  in  consideration  of  the 
agreement  of  another  to  become  an  indorser,  to  a  specified  amount,  of 
negotiable  paper  of  the  former,  executes  to  the  latter  a  mortgage  on 
such  real  estate,  to  indemnify  him  against  loss,  not  only  from  such 
future  indorsements,  but  also  from  similar  indorsements  already  made, 
such  future  indorsements,  when  made,  relate  back  to  the  execution  of 
such  mortgage,  and  are  valid  liens  against  encumbrances  placed  upon 
the  mortgaged  property  subsequently  to  the  execution  of  such  mort- 
gage, by  persons  having  either  actual  or  constructive  notice  thereof, 
though  such  indorsements  be  made  by  the  mortgagee  subsequent  to 
the  placing  of  such  encumbrances  and  with  notice  thereof.  Brink- 
meyer  v.  Helbling,  57  Ind.  435. 


INNOCENT  HOLDERS  AND  PURCHASERS. 

1885.  An  unrecorded  deed  passes  the  title  of  the  grantor  to  the 
grantee,  but   to  be   valid  against  creditors  and  purchasers  without 
notice,  it  should  be  acknowledged  or  proved,  and  lodged  for  record 
within  the  time  prescribed  by  law.     The  protection  of  innocent  pur- 
chasers in  such  cases,  prior  to  the  passage  of  the  act  of  February  10, 
1858,  applied  to  purchasers  from  the  grantor  himself,  but  did  not  apply 
to  purchasers  from  his  heirs  or  devisee.     Dozier  &  Co.  v.  Barnett  & 
Co.,  13  Bush,  Ky.  457. 

1886.  The  judgment  bonds  of  a  county  in  the  hands  of  innocent 
holders  for  value,  with  notice  of  their  illegalit}'  for  any  cause,  cannot 
be  defeated  by  showing  that  the  judgments  were  rendered  upon  war- 
rants issued  in  excess  of  the  constitutional  limitation  of  five  per  cent., 
and  that  the  board  of  supervisors  fraudulently  omitted  to  interpose 
the  defence  when  the  warrants  were  sued  upon.      The  S.  C.  &  St.  P.  It. 
JR.  Co.  v.  The   County  of  Osceola,  et  al,  45  Iowa,  168,  Beck,  J.,  dis- 
senting. 


INSURANCE. 

1887.  A  policy  of  insurance  should  be  construed  most  strongly 
against  the  insurer,  and  liberally  in  favor  of  the  assured.     Brick  &  Co. 
v.  Merchants'  and  Mechanics'  Ins.  Co.,  49  Rowell,  Vt.  442. 

1888.  When  a  policy  of  life  insurance  contains  a  clause  declar- 
ing ic  void  on  failure  of  the  assured  to  pay  the  annual  premium  on  the 
•day  it  falls  due,  to  work  forfeiture,  it  is  not  necessary  for  the  insurer  to 
give  notice  of  intention  to  claim  it,  but  on  failure  to  pay  at  the  time 
stipulated  the  policy  becomes  void  because  of  the  non-payment.     Such 
•conditions  in  a  policy  are  not  unreasonable  or  against  public  policy. 
JRoehner  v.  Knickerbocker  Life  Ins.  (7o.,  18  Sickels,  N.  Y.  160. 

1889.  One  who  has  the  control  of  property,  either  as  owner,  con- 


262  MONROE'S  DIGEST 

signee  or  agent,  may  affect  an  insurance  thereon  in  his  own  name,  o» 
account  of  whom  it  may  concern,  loss  payable  to  him  ;  and,  in  case  of 
loss,  may  maintain  an  action  thereon.  An  overvaluation  does  not  per 
ee  render  a  valued  marine  policy  void  ;  in  the  absence  of  fraud,  acci- 
dent or  mistake,  the  valuation  agreed  upon  is  binding  and  conclusive,, 
however  largely  in  excess  of  the  true  value.  Sturne  v.  At.  M.  Ins.  Co.r 
18  Sickels,  N.  Y.  78. 

1890.  The  sale  and  assignment  of  a  life  policy,  outstanding  and 
valid,  and  containing  no  prohibition  of  such  alienation,  is   good  in 
Rhode  Island,  though  made  to  one  who  has  no  interest  in  the  life  in- 
sured, provided  such  sale  and  assignment  is  a  bona  fide  business  trans- 
action, and  not  a  device  to  evade  law.     Clark  \.  Allen,  11  R.  I.  ;  alsor 

Trenton  Mut.  Life  Ins.  Go.  v.  Johnston,  24  N.  J.  Law,  576  ;  Campbell 
v.  Mut.  Life  Ins.  Co.,  98  Mass.  381. 

1891.  In  every  case  of  marine  insurance  there  is  an  implied  war- 
ranty, on  the  part  of  the  insured,  of  seaworthiness,  and  if  the  vessel  is- 
not  seaworthy,  the  policy  will  not  attack.      Van  Wickle  v.  Mech  &  Tr. 
Ins.  Co.,  9?  N.  Y.  350. 

1892.  This  warranty  is  a  condition  precedent,  the  performance  of 
which  must  be  alleged  and  proved  to  entitle  the  insured  to  recover  in 
an  action  on  the  policy.     Ibid. 

1893.  Agreement  of  life  insurance  company  to  pay  agent  commis- 
sions on  renewals,  on  a  gross  sum  in  lieu  thereof,  is  terminated  by  dis- 
solution of  company.     Hepburn  v.  Montgomery,  97  N.  Y.  617. 

1894.  The  law  will  not  imply  an  unwritten  contract  which  the 
parties  themselves  could  not  make  without  writing.     Chase  v.  Second 
Ave.  E.  R.  Co.,  97  N.  Y.  384. 

1895.  Waiver  of  breach  of  condition  at  issuance  of  policy  of  in- 
surance continues  in  favor  of  all  renewals   granted  of   such   policy. 
Kruger  v.  Western  Fire  &  Marine  Ins.  Co.,  72  Cal.  91. 

1896.  Proof  that  the  assignee  of  a  policy  of  life  insurance  caused 
the  death  of  the  assured  by  felonious  means  is  sufficient  to  defeat  a  re- 
covery on  the  policy.     New  York  Mut.  Life  Ins.  Co.  v.  Armstrong,  11T 
U.  S.  591. 


INTERLINEATIONS. 

1897.  It  was  said  in  Stanberry  v.  Moore,  56  111.  472,  that  the  prac- 
tice of  making  amendments  by  erasures  and  interlineations  is  a  bad 
one,  and  ought  not  to  be  tolerated  ;  that  a  paper  thus  disfigured  ought 
to  be  stricken  from  the  files.     This,  however,  was  not  necessary  to  be- 
said,  as  that  matter  was  not  a  point  of  the  case.    The  remark  was  only 
intended  to  indicate  a  better  practice.     Garrity  v.  Wilcox,  et  al.,  83- 
111.  159. 

1898.  A  judgment  to  bear  interest  at  ten  per  cent,  per  annum 
until  paid  was  proper  on  a  note  bearing  interest  at  the  rate  of  ten  per 
cent,  per  annum  "  from  date  until  paid,"  the  statute  authorizing  ten 
per  cent,  interest  when  the  note  was  executed.     Crosthwait  &  Co.  \. 
Misener,  13  Bush,  Ky.  543. 

1899.  When  at  the  place  of  contract  the  rate  of  interest  differs- 


OF   STANDARD   DECISIONS.  263 

from  that  at  the  place  of  payment,  the  parties  may  stipulate  for  either 
rate,  and  the  contract  will  govern.  Cromwell  v.  County  of  Sac,  96  U. 
S.  51. 

1900.  The  bonds  of  a  railway  company  were  made  payable  on 
the  first  day  of  January,  1861,  with  interest,  "at  the  rate  of  six  per 
cent,  per  annum,  payable  half-yearly,  at  said  treasurer's  office,  on  the 
first  days  of  July  and  January  of  each  year  after  the  first  day  of  Jan- 
uary, 1851,  upon  the  surrender  of  the  corresponding  warrants  hereto 
annexed."     Held,  that  interest  after  maturity  and  the  payment  of  all 
the  coupons  was  recoverable  by  way  of  damages  for  the  detention  of 
money  due,  and  should  be  computed  at  six  per  cent.,  without  semian- 
nual or  other  rests.     Ashuelot  R.  R.  Co.  v.  Elliot,  57  Hall,  N.  Y.  397. 

1901.  By  the  act  of  1872  it  was  provided  "  that  no  greater  rate 
of  interest  than  six  per  centum  per  annum  shall  be  recovered  in  any 
action  except  where  the  agreement  to  pay  such  greater  rate  of  inter- 
est is  in  writing."     The  agreement  in  the  note  to  pay  eight  per  cent, 
should  not  be  construed  to  extend  beyond  its  maturity,  especially  in 
face  of  the  stipulation,  where  the  interest  after  maturity  is  treated  as 
a  penalty,  not  covered  by  the  contract,  and  liable  to  be  raised  on  a  con- 
tingency.    Fisher  v.  Bidwell,  27  Conn.  363 ;  Brewster  v.  Wakefield, 
22  How.  118  ;  Ludwick  v.  Huntzinger,  5  Watts  &  Serg.  51. 

1902.  Upon  the  bonds  of  a  railroad  corporation  received,  by  one 
who  has  advanced  the  money  with  which  they  were  taken  up,  under 
an  agreement  that  they  were  to  be  delivered  to  him  uncanceled  as  se- 
curity for  the  advances,  as  against  the  corporation  are  valid  securities 
in  the  hands  of  the  holder,  and  a  mortgage  upon  the  corporate  property 
given  to  pay  the  bonds  may  be  enforced  for  his  benefit.      Union  Trust 
Go.  of  N.    Y.  v.  Monticello  and  Port  Jervis  R.  R.  Co.,  18  Sickels,  N. 

y.  311. 

1903.  Where  the  contract  does  not  fix  the  rate  of  interest  to  be 
paid  after  the  maturity  of  the  date,  the  law  fixes  the  rate  at  six  per 
cent.     Evans  v.  Chapel,  13  Bush,  Ky.  121. 


INTEREST. 

1904.  To  an   action   for  mone}r   loaned,  and   for  interest  upon 
money   loaned   and  upon  an  account  stated,  a  plea  that  the   several 
promises  were  to  pay  interest  at  a  greater  rate  than  ten  per  cent,  per 
annum,  and  that  such  promises  were  not  in  writing,  is  bad.     If  upon 
payment  of  the  principal  sum  due  on  a  promissory  note,  the  maker 
promises  to  pay  interest  due  on  the  same  note  at  a  future  day,  and  the 
payee  thereupon  cancels  the  note,  and  deliver  it  to  the  maker,  to  en- 
able the  latter  to  show  it  to  other  parties  with  whom  he  has  dealings, 
an  action  may  be  maintained  upon  such  promise.     Hall  v.  King,  2 
Colorado,  711. 

1905.  When  both  parties  lived  in  Virginia  during  the  war,  the 
creditor  is  entitled  to  war  interest.     Johnston,  Trustee,  Etc.  v.  Wilsons 
Adm'r,  et  al,  29  Grattan  (Va.)  379. 

1906.  Sureties  liable  for  interest  as  damages  in  an  action  upon  an 
official  bond.     Interest  upon  the  balance  due  from  the  principal  was 


264  MONROE'S  DIGEST 

properly  allowed  from  the  date  when  he  rendered  his  account.     Jen~ 
ness  v.  City  of  Blackhawk,  2  Colorado,  578. 

1907.  Ten  per  cent,  interest  for  discounts  on  loans  can  be  taken 
under    the    general   banking   law   of    Michigan    (Comp.  L.   §   2185.) 
Cameron,  et  al.  v.  Merchants'  &  Manufacturers'1  Bank,  37  Mich.  240. 

1908.  Where  ten  per  cent,  interest  is  exacted,  the  rate  need  not  be 
expressly  stated  in  writing  ;  It  is  enough  if  the  contract  clearly  ex- 
presses the  sum  to  be  paid.     The  statutory  requirement  that  stipula- 
tions for  ten  per  cent,  interest  shall  be  in  writing  was  meant  to  prevent 
ambiguity  as  to  what  interest  was  to  be  paid,  and  to  conform  to  the 
rule  rejecting  parol  explanations  of  writings.     Ibid. 

1909.  A  promissorjr  note  was  made  in  1872,  with  interest  pa3-able 
semiannual!}'  at  the  rate  of  eight  per  cent,  per  annum,  which  was  then 
legal.     The  note  was  given  for  a  loan  made  by  a  corporation,  and  was 
intended  to  run  for  several  years.     In  1875  an  act  was  passed  limiting 
the  rate  of  interest  in  Connecticut  for  money  loaned  to  seven  per  cent. 
Held,  that  eight  per  cent,  continued  to  be  the  legal  rate  of  interest  upon 
the  note,  after  the  act  was  passed,  and  until  the  note  was  paid. 

1910.  The  note  was  given  by  a  husband  and  wife  and  secured  by 
a  mortgage  of  her  land.    The  husband  at  the  same  time  signed  a  paper 
agreeing  to  an  increase  of  interest  so  long  as  any  interest  remained 
unpaid,  and  to  a  foreclosure  if  it  remained  unpaid  sixty  days  after  due. 
Held,  that  this  paper  was  admissible  for  the  purpose  of  showing  that  a 
permanent  loan  was  intended.     Seymour  v.  Continental  Life  Ins.  Co.t 
44  Conn.  300. 

1911.  The   act   of   April,  1873,  Code  of   1873.  ch.  173,  §  14,  p. 
11-20,  which  authorizes  the  abatement  of  war  interest  upon  debts  con- 
tracted before  the  10th  of  April,  1865,  is  unconstitutional  and  void  ; 
and  a  creditor  residing  in  Virginia  during  the  war  is  entitled  to  have 
interest  upon  his  debt.     Pretlow  v.  Bailey's  Ex'r,  et  al.,  29  Grattan 
(Va.)  212. 

1912.  In  a  state  where  the  law  allows  as  high  as  ten  per  cent,  per 
annum  interest,  a  decree  will  not  be  reversed,  because  it  allows  against 
a  fraudulent  administrator  eight  per  cent,  with  annual  rests.     Hook 
v.  Payne,  14  Wall.  II.  S.  252. 

1913.  A  provision  in  a  judgment  of  another  state  or  territory,  al- 
lowing interest  on  the  amount  thereof  at  a  rate  specified,  does  not  con- 
trol where  suit  is  brought  upon  the  judgment  in  this  state,  as  the  in- 
crease is  allowed,  not  as  interest  but  as  damages,  its  measure  must  be 
that  of  the  state  where  the  action  for  its  recovery  is  brought.       W.  F. 
&  Co.  v.  Davis,  105  N.  Y.  670. 

1914.  Interest  is  not  allowable  in  an  action  for  the  breach  of  a 
contract,  if  the  damages  sought  to  be  recovered  are  so  unliquidatable 
and  uncertain  that  they  must  be  made  certain  by  proof  and  adjudica- 
tion.    Coburn  v.  Goodall,  72  Cal.  498. 

1915.  When,  at  the  time  of  an  agreement  for  a  loan,  nothing  is 
said  as  to  the  rate  of  interest,  the  law  implies  it  to  be  that  limited  by 
statute  ;  to  increase  or  alter  it,  a  special  agreement  is  necessary,  and 
where  the  defence  of  usury  is  interposed,  the  burden  of  showing  that 
such  an  agreement  was  made  is  upon  the  defendant.    Guggenheimer  v. 
Oeiszler,  81  N.  Y.  293. 

1916.  It  was  stipulated  in  plaintiff's  mortgages  which  were  exe- 


OF   STANDARD   DECISIONS.  265 

outed  prior  to  the  passage  of  the  act  (chap.  538,  Laws  of  1879)  re- 
ducing the  rate  of  interest  to  six  per  cent.,  that  the  principal  sum 
should  bear  interest  at  seven  per  cent,  until  paid.  By  the  decision  and 
judgment  entered  thereon,  interest  was  directed  to  be  paid  on  the 
amount  found  due,  from  the  date  of  the  decision,  at  the  rate  of  seven 
per  cent.  Held,  error;  that  after  entry  of  judgment  the  mortgages 
were  merged  therein,  and  thereafter  plaintiff  was  entitled  to  interest, 
not  by  virtue  of  the  mortgages,  but  of  the  judgment ;  and  so,  that  the 
interest  should  have  been  at  the  lawful  rate.  Taylor  v.  Wing,  84  N. 
Y.  471. 

1917.  An  allowance  for  the  failure  to  pay  at  maturity  money  due 
by  contract,  is  regarded  as  damages  for  the  breach  of  contract,  not  as 
interest  on  the  money  due.     The  measure  of  such  damages  is  the  value 
of  tbe  use  of  the  money  during  the  time  for  which  it  has  been  withheld. 
The  stipulation  of  the  parties  as  to  the  rate  of  interest  after  maturity 
may  be  accepted  as  the  measure  of  damages,  provided  they  adhere  to 
what  may  be  reasonably  sufficient  to  compensate  the  loss  arising  from 
the  breach  of  contract. 

1918.  If,  however,  the  rate  of  interest  specified  in  the  contract 
greatly  exceeds  the  real  value  of  the  money,  it  is  to  be  regarded  as  a 
penalty  for   non-payment  of  the  principal  sum,  rather  than   a  just 
recompense  for  detaining  it. 

1919.  In  the  absence  of   evidence  as  to  the  current  rate  of  in- 
terest at  the  time  the  contract  was  made,  the  rate  specified  in  the  con- 
tract may  be  accepted  as  the  true  measure  of  damages.     Browne  \. 
Steck,  2  Colorado,  70. 

1920.  Compound  Interest  is  never  allowed,  except  in  special  cases; 
as,  where  there  has  been  a  settlement  of  accounts,  after  interest  has  be- 
come due ;  or  there  has  been  an  agreement  for  that  purpose,  subse- 
quently to  the   original  contract ;  or  a  master's  report,  computing 
principal  and  interest,  has  been  confirmed.     Connecticut  v.  Jackson,  1 
Johns.  Ch.  13  ;  Stoughton  v.  Lynch,  2  Johns.  209. 

1921.  C.  and  P.  executed  their  single  bill,  dated  October  18,  1871, 
whereby  they  promised  "  six  months  after  date  to  pay  to  H.  or  order 
the  sum  of  seven  thousand  dollars,  with  interest  at  the  rate  of  12  per 
<centum  per  annum  from  date."     Held,  1.     The  contract  for  interest  at 
the  rate  of  12  per  cent,  per  annum,  was  legal  under  the  constitutional 
provision  in  force  at  the  time  of  the  contract,  and  is  not  affected  by  the 
subsequent  abolition  of  that  provision.     2.  The  obligors  in  the  bond 
are  bound  to  pay  interest  after  the  rate  of  12  per  cent,  per  annum,  not 
only  up  to  the  maturity  of  the  bond,  but  after  maturity  and  until  the 
payment  thereof.     Cecil  &  Perry  v.  Hicks,  29  Grattan  (Va.)  1. 

1922.  An  agreement,  made  at  the  time  of  the  original  loan,  that 
interest  shall  be  compounded,  in  case  of  default  in  paying  it  when  due, 
is  not  valid.     Van  Bemschooten  v.  Lawson,  6  Johns.  Ch.  313  ;  also.  Van 
Rensselaer  v.  Jones,  2  Barb.  N.  Y.  643. 

1923.  Where  a  promise  is  made  to  pay  in  labor  and  material  in 
annual  payments,  interest  does  not  begin  to  run  until  the  year  is  com- 
pleted in  which  any  given  payment  is  to  be  made,  and  the  debtor 
is  in  default.     Fredenburg,  Adm.  v.  Turner,  et  al.,  37  Mich.  402. 

1924.  When  interest  is  made  payable  annually  upon  a  fixed  date, 
the  fact  that  the  first  instalment  falls  due  within  a  year  is  not  a 


266  MONROE'S  DIGEST 

departure  from   the  terms.      Griffin,  et  al.   v.   Johnson,  et  al.,  3T 
Mich.  87. 

1925.  Upon  a  guaranty  indorsed  upon  a  promissory  note,  the  in- 
terest specified  in  the  note,  as  well  as  the  principal  sum,  may  be  re- 
covered.    Martin  v.  Hazard  Powder  Co.,  2  Colorado,  569. 

1926.  A  promise  to  pay  on  demand  £200,  with  interest,  is  a  prom- 
ise to  pay  interest  from  the  date  of  the  note.     Baxter  v.  Robinson,  2 
Rev.  de  Leg.  439,  K.  B.  1816. 

1927.  A   note  which   contains   the   following  as  to  the  interest,, 
viz:     "  With  interest  at  the  rate  of  sixteen  per  cent,  per  annum  from 
date,"  bears  the  legal  and  not  the  conventional  rate  of  interest,  after 
maturity.     Newton  v.  Kennerly,  31  Ark.  626. 

1928.  By  the  statute  of  1869-70,  p.  699,  accounts  draw  interest 
only  from  the  day  on  which  they  are  settled,  and  a  balance  is  ascer- 
tained.    Bank  of  California  v.  Northam,  51  Cal.  387. 

1929.  A  depositor  in  a  national  bank,  when  it  suspends  paj^ment,. 
and  a  receiver  is  appointed,  is  entitled,  from  the  date  of  his  demand,  ta 
interest  upon  his  deposit.     The  interest  being  a  liquidated  sum  at  the 
time  of  the  payment  of  the  deposit,  an  action  lies  to  recover  it,  and  in- 
terest thereon.     National  Bank  of  the  Commonwealth  v.  Mechanics' 
National  Bank,  94  U.  S.  437. 

1930.  The  holder  of  coupons  attached  to  town  bonds,  where  the  lat- 
ter recite  that  they  are  issued  in  pursuance  of  a  duly  authorized  sub- 
scription for  stock  of  a  railroad  compan}',  which  before  the  subscription 
was   actually  made  had  become  consolidated   with   another,  thereby 
forming  a  third  company,  and  the  authority  to  subscribe  was  limited 
to  the  first  company,  is  not  entitled  to  recover  thereon,  as  sufficient 
notice   of  the   objection   to   the   validity  of  the  bonds  is   contained 
in  their  recitals.     Harshman  v.  Bates  County  (2  Otto,)  U.  S.  S.  Ct^ 
92,  569. 

1931.  In  order  to  entitle  a  creditor  to  interest  on  a  debt  from  the 
time  when  the  debt  was  payable,  if  such  debt  be  pa37able  by  virtue 
of  some  written  instrument  at  a  certain  time,  it  is  not  necessary  that 
the  day  for  the  payment  should  be  mentioned  in  the  instrument ;  it  is- 
sufficient  if  a  time  or  event  be  fixed,  the  date  of  which  can  be  ascer- 
tained afterward.     Duncomb  v.  Brighton  Club  and  Norfolk  Hotel  Com- 
pany, 10  L.  R.  Q.  B.  371 ;  44  L.  J.  Q.  B.  216  ;  23  W.  R.  795 ;  L.  T.  N. 
S.  863. 

1932.  Interest  where  allowed,  not  under  contract,  but  by  way  of 
damages,  the  rate  must  be  according  to  the  lex  bori.     Goddard  v. 
Foster,  17  Wall.  U.  S.  124. 

1933.  Where  interest  as  a  general  thing  is  due  and  there  is  no- 
statute  in  the  place  where  the  account  is  settled  and  the  transaction 
takes  place,  giving  interest,  in  such  case  it  is  to  be  allowed  at  a  reason- 
able rate,  and  conforming  to  the  custom  which  obtains  in  the  com- 
munity in  dealings  of  the  same  character  as  the  one  on  which  the  suit 
arises,  by  way  of  damages  for  unreasonably  withholding  an  overdue- 
account.      Young  v.  Godbe,  15  Wall.  U.  S.  562. 

1934.  A  party  suing,  not  on  a  note,  but  on  the  consideration  for 
which  the  note  was  given — and  using  the  note  as  evidence  rather  than 
as  the  foundation  of  the  claim — may  have  lawful  interest  on  the  sum 
due  him  although  by  note  given  on  a  settlement  the  part}'  ma}r  have 


OF   STANDARD  DECISIONS.  26T 

promised  to  pay  unlawful  interest,  and  such  as  the  law  of  the  state 
where  the  note  was  given  visits  with  a  forfeiture  of  all  interest  what- 
ever. Newell  v.  Nixon,  4  Wall.  U.  S.  572. 

1935.  A  prohibition  against  lending  money  at  a  higher  rate  of  in- 
terest than  the  law  allows  will  not  prevent  the  purchase  of  securities 
at  any  price  which  the  parties  may  agree  upon.     Ibid. 

1936.  Compound  interest  is  not  usury ;  nor  is  a  stipulation  in  an 
original  contract  that  the  interest  shall  be  compounded  if  not  punctu- 
ally paid,  either  illegal,  immoral,  or  contrarj'  to  public  policy  ;  nor, 
a  fortiori,  is  such  an  agreement;  much  less  will  it  interfere  after  judg- 
ment at  law  founded  upon  the  agreement.     (Cited  in  Ward  v.  Brandon, 
1  Heisk.  493.)     Hale  v.  Hale,  (1  Caldwell)  41  Tenn.  233 ;  also,  Mowry 
v.  Bishop,  5  Page.  N.  Y.  98. 

1937.  Whether  a  negotiation  of  securities  is  a  purchase  or  a  loan, 
is  ordinarily  a  question  of  fact ;  and  does  not  become  a  question  of  law 
until  some  fact  be  proven  irreconcilable  with  one  or  the  other  con- 
clusion.    Oalveston  Railway  v.  Cowdrey,  1 1  Wall.  U.  S.  459. 

1938.  Though  the  negotiation  of  one's  own  bond  or  note  is  ordi- 
narily a   loan  in  law,  yet  if  a  sale  thereof  be  authorized  by  an  act  of 
the  legislature  it  becomes  a  question  of  fact,  whether  such  negotiation 
was  a  loan  or  a  sale.     Ibid. 

1939.  Interest  is  due  on  coupons,  after  pa3rment  of  them  is  un- 
justly neglected  or  refused.     Aurora  City  v.  West,  7  Wall.  U.  S.  87. 

1940.  Interest  is  not  allowable  as  a  matter  of  law,  in  cases  of 
tort.     Its  allowance  as  damages  rests  in  the  discretion  of  the  jury. 
Lincoln  v.  Claflin,  7  Wall.  U.  S.  132. 

1941.  Interest  is,  apparently,  not  sanctioned  by  the  Supreme  Court 
on  claims  against  the  government.     Gordon  v.  United  States,  7  Wall. 
U.  S.  188. 

1942.  Interest  in  mutual  accounts  is  to  be  cast  on  the  annual 
balances.     Davis  v.  Smith,  48  Vt.  52. 

1943.  Interest  on  a  note  payable  on  demand  runs  only  from  de- 
mand, or  suit  brought,  and  the  fact  that  the  note  was  given  for  money 
received  at  the  time  it  was  made  does  not  change  the  rule.     Suit  on  a 
note  payable  on  demand  may  be  brought  without  a  previous  request 
for  payment,  the  suit  itself  being  equivalent  to  a  demand.     Hunter  v. 

Wood,  54  Ala.  71. 

1944.  Interest  at  the  rate  of  only  six  per  cent,  can  be  recovered 
where  no  rate  of  interest  is  agreed  upon  between  the  parties.    Convey 
v.  Sheldon,  1  Bradwell's,  111.  App.  Rpts.  555. 

1945.  As  to  parties  holding  simply  the  relation  of  creditor  and 
debtor,  compound  interest  will  not  be  allowed.     Force  v.  Elizabeth,  28 
N.  J.  Eq.  403. 

1946.  On  a  note  payable  on  demand,  with  the  rate  of  interest  speci- 
fied therein,  interest  is  to  be  computed  at  such  rate  till  the  rendition 
of  verdict,  or  default.     Colby  v.  Bunker,  68  Me.  524. 

1947.  As  a  mere  incident,  interest  on  interest  is  not  allowed,  but  a 
promise  to  pay  it  is  not  illegal  or  without  consideration ;  and  the 
weight  of  authority  is  perhaps  in  favor  of  the  validity  of  the  promise, 
at  law,  whether  made  at  or  subsequent  to  the  original  contract.     Paul- 
ing v.  Creagh,  54  Ala.  646. 

1948.  A  note  bearing  interest  over  ten  per  cent,  per  annum,  from 


•268  .    -     MONROE  S    DIGEST 

due  until  paid,  carries  the  stipulated  interest  to  the  date  of  the  judg- 
ment, and  the  judgment  bears  ten  per  cent.  Budgett  v.  Jordan,  32 
Ark.  154. 

1949.  A  note  which  contains  a  stipulation  for  interest,  at  the  rate 
-of  ten  per  cent.,  etc.,  from  date,  bears  six  per  cent,  interest  (the  legal 
rate)  after  maturity,  and  a  judgment  thereon  should  bear  six  per  cent, 
interest.     Pettigrew  v.  Summers,  32  Ark.  571. 

1950.  A  note  which  stipulates  for  interest  from  date  until  ma- 
turity, at  the  rate  of  ten  per  cent,  per  annum,  bears  the  statutory  rate 
(six  per  cent.)  after  maturity.      Woodruff  v.  Webb,  32  Ark.  612. 

1951.  Only  legal  interest  will  be  allowed  when  a  larger  interest  is 
not  stipulated  in  writing.     Buckley  v.  Seymour,  30  La.  1341. 

1952.  On  a  note  payable  on  demand,  with  interest  at  ten  per  cent., 
that  rate  of  interest  is  recoverable  up  to  the  date  of  the  verdict,  when 
damages  are  assessed  by  a  jury,  and  up  to  the  date  of  judgment  when 
&  default  is  entered  in  a  suit  on  the  note.     Paine  v.  Caswell,  68  Me.  80. 

1953.  When  a  note  contains  a  stipulation  for  interest,  at  the  rate 
often  per  cent,  per  annum  until  matui'ity,  and  two  per  cent,  per  month 
^,fter  maturity,  the  increased  interest  after  maturity  cannot  be  treated 
AS  a  penalty.     When  judgment  is  recovered  on  a  note,  the  contract  ia 
merged   in   the  judgment,  and    it   bears   statutory   rate   of  interest. 
Miller  v.  Kempner,%%  Ark.  573. 

1954.  A  loan  of  money  was  made  for  two  months  at  two  per  cent, 
a  month,  at  the  expiration  ,of  which  time  it  was  contemplated  a  new 
arrangement  would  be  made.     After  the  expiration  of  the  two  months, 
no  other  arrangement  having  been  effected,  the  court  held  the  lender 
-entitled  to  claim  interest  at  the  rate  originally  agreed  upon,  and  to  sell 
the  notes  held  by  him  as  security,  to  repay  himself  the  amount  of  his 
•claim,  subject  only  to  the  question  whether  he  had  sold  the  notes  for 
the  best  price  that  could  be  obtained  for  them  ;  and  as  to  which  the 
court  directed  an  inquiry  by  the  Master.     O'Connor  v.   Clarke,  18 
Grant,  Ontario  Chancy.  422. 

1955.  One  to  whom  money  is  paid,  and  who  receives  it  believing 
that  it  is  his  due,  is  not  liable  for  interest  upon  it  before  demand  made 
and  refusal  to  pay,  nor  until  he  shall  have  reason  to  be  satisfied  that 
he  ought  to  repay  it,  and  shall  know  to  whom  he  should  pay  it.     Ash- 
hurst  v.  Field,  28  N.  J.  Eq.  315. 

1956.  Interest  on  a  judgment  or  debt  due  is  computed  up  to  the 
time  of  the  first  payment,  and  the  payment  so  made  is  first  applied  to 
discharge  the  interest,  and  afterwards,  if  there  is  a  surplus,  it  is  ap- 
plied upon  the  principal,  and  so  toties  quoties,  taking  care  that  the 
principal  thus  reduced  shall  not  at  any  time  be  suffered  to  accumulate 
by  the  accruing  interest.     Davis  v.  Neligh,  7  Neb.  78. 

1957.  When  interest  is  recoverable  merely  as  damages,  an  action 
•cannot  be  maintained  for  its  recovery,  after  payment  of  the  principal. 
This,  when  a  bequest  or  contract  is  silent  as  to  interest,  so  that,  if  it 
can  be  recovered  at  all,  it  can  only  be  recovered  as  damages,  an  action 
to  recover  it  cannot  be  maintained  after  the  payment  of  the  principal. 
American  Bible  Soc.  v.  Wells,  68  Me.  572. 

1958.  In  the  absence  of  a  written  agreement,  by  the  defendant,  to 
pay  eight  per  cent,  per  annum  interest,  only  legal  interest  can  be  re- 
covered.    Bayly  &  Pond  v.  Stacey  &  Poland,  30  La.  1210. 


OF  STANDARD   DECISIONS. 

1959.  The  condition  of  a  mortgage,  dated  June  28,  1871,  was  that 
the  principal  should  be  paid  on  April  1st,  1873,  "with  interest  annu- 
ally on  the  first  day  of  April  in  each  year."     An  action  was  com- 
menced to  foreclose  the  mortgage  December  23,  1872,  upon  the  ground 
of  default  in  the  payment  of  interest  alleged  to  have  become  due 
April  1,  1872.     Held,  that  by  the  stipulation  as  to  interest  reference 
was  had  to,  and  it  was  intended  to  provide  for  a  payment  of  interest 
prior  to  the  time  when  the  principal  became  due,  and  that  plaintiff's- 
claim  was  well  founded.     Cook  v.  Clark,  68  N.  Y.  178. 

1960.  When  a  party  agrees  by  note  to  pay  a  certain  sum  at  the 
expiration  of  a  year,  with  interest  on  it  at  a  rate  named,  the  rate  being 
higher  than  the  customary  rate  of  the  State  where  he  lives,  and  doe& 
not  pay  the  note  at  the  expiration  of  the  year,  it  bears  interest,  not  at 
the  old  rate,  but  at  the  customary  or  statute  rate.     Burnhisel  v.  Fir- 
man, 22  Wallace  (U.  S.)  170.     If,  however,  the  parties  calculate  inter- 
est, and  make  a  settlement  upon  the  basis  of  the  old  rate,  and  the  debtor 
gives  new  notes  and  a  mortgage  for  the  whole  on  that  basis,  the  notes- 
and  mortgage  are,  independently  of  the  Bankrupt  Act,  and  of  any 
statute  making  such  certificates  void  in'toto  as  usurious,  valid  securities- 
for  the  amount  which  would  be  due  on  a  calculation  properly  made. 
They  are  bad  only  for  the  excess  above  proper  interest.     Ibid. 

1961.  Under  the  provisions  of  the  Banking  Act  of  1870  (chap. 
163,  Laws  of  1870),  prohibiting  banks  from  charging  upon  any  discount 
a  rate  of  interest  greater  than  seven  per  cent.,  and  in  case  a  greater 
rate  of  interest  has  been  paid,  authorizing  a  recovery  by  the  party  pay- 
ing it  of  twice  the  amount,  it  is  not  necessary  that  the  payment  should 
be  made  in  money  to  subject  the  receiver  to  liability.     Nash  v.  White's 
Bank  of  Buffalo,  68  N.  Y.  396. 

1962.  When  commercial  paper  is  transferred  to  and  discounted  by 
a  bank  at  a  greater  rate  of  interest  than  seven  per  cent.,  and  the  net 
proceeds,  after  deducting  the  interest  charged,  are  credited  to  the  trans- 
ferrer,  this  is  a  payment  within  the  meaning  of  the  statute.     The  fact 
that  the  paper  discounted  is  business   paper,  so  that  the  purchase 
thereof  is  not  usurious  under  the  general  statutes,  does  not  relieve  from 
liability  under  said  act.     Ibid. 


IRREGULARITY. 

1963.  A  party  consenting  to  a  proceeding  which  he  might  prevent 
by  resisting  it  on  account  of  irregularity,  thereby  waives  all  exception 
to  such  irregularity.  Patton  v.  Hughesdale,  11  R.  I.  188. 


270  MONROE'S  DIGEST 


JOINT  DEBTORS. 

1964.  The  provision  of  the  Code  of  Civil  Procedure  (§  758),  pro- 
viding that  the  estate  of  one  jointly  liable  with  others  shall  not  be  dis- 
charged by  his  death,  does  not  affect  contracts  entered  into  before  its 
passage.  The  provision  is  not  merely  remedial,  as  it  imposes,  in  some 
<;ases,  an  obligation  where  none  existed  before.  Eandall  v.  Sackett,  77 
N.  Y.  480. 


JUDGMENT. 

1965.  The  reversal  of  a  judgment  destroys  its   efficacy  as  an 
estoppel.     Smith  v.  Frankfield,  77  N.  Y.  414. 

1966.  After  the  satisfaction  of  a  judgment  in  favor  of  plaintiff  it 
is  within  the  discretion  of  the  court  to  vacate  it  and  to  amend  the  com- 
plaint by  adding  new  causes  of  action,  although  by  so  doing  the  statute 
of  limitations  is  avoided.     Hatch  v.  Centl.  Nat  Bank,  78  N.  Y.  487. 

1967.  The  validity  of  a  claim  upon  which  a  judgment  has  been 
rendered,  cannot  be  questioned  in  an  action  by  the  judgment-creditor 
to  reach  property  alleged  to  have  been  transferred  by  the  debtor  in 
fraud  of  his  creditors  ;  the  judgment  is  conclusive.     Decker  v.  Decker, 
108  N.  Y.  128. 

1968.  The  fact  that  a  transfer  of  a  debtor's  property,  with  intent 
to  defraud  his  creditors,  is  accomplished  through  the  agency  of  a  valid 
judgment  lawfully  enforced,  does  not  alter  its  fraudulent  character  or 
•enable  it  to  defy  justice.     Decker  v.  Decker,  108  N.  Y.  128. 


JUDICIAL  NOTICE. 

1969.  It  seems  that  the  court  will  take  judicial  notice  of  the  nature 
of  the  business  and  the  office  of  mercantile  agencies.     Eaton  C.  &  B. 

Co.  v.  Avery,  83  N.  Y.  61. 

1970.  The  courts  will  take  judicial  notice  of  the  general  course  of 
business  in  a  communitv,  including  the  universal  practice  of  banks. 
Merchants'1  Nat.  Bank  v~Hall,  83  N.  Y.  338. 


JUDICIAL  SALES. 

1971.  A  judgment  of  foreclosure  directing  the  sale  of  mortgaged 
premises  by  the  sheriff  is  a  "  mandate  "  in  his  hands  within  the  mean- 
ing of  the  provision  of  the  Code  of  Civil  Procedure  prescribing  the 
duties  of  an  outgoing  sheriff  (§  184,  sub.  4),  and  an  advertisement  of 
the  premises  for  sale  is  a  "  seizure  "  within  said  provision.     Un.  Dfme 
Svgs.  Instn.  v.  Anderson,  83  N.  Y.  174. 

1972.  Where,  therefore,  a  sheriff  of  the  county  of  Kings  had,  prior 
to  the  expiration  of  his  term  of  office,  under  such  a  judgment,  adver- 


OF  STANDARD  DECISIONS.  271 

tised  premises  for  sale  upon  a  day  after  his  term  had  expired,  held,  that 
he  had  authority  and  was  bound  to  proceed  with  and  complete  the  sale. 
Un.  Dime  Svgs.  Instn.  v.  Anderson,  83  N.  Y.  174. 


JUDGMENT: 

1973.  In  the  absence  of  fraud,  a  judgment  takes  effect  only  on  the 
actual  interest  in  land  which  the  judgment  debtor  has  at  the  time  of 
the  recovery  of  the  judgment.      Trenton   Bkg.  Co.  v.  Duncan,  86  N. 
Y.  221. 

1974.  The  title  therefor  of  a  grantee  of  the  judgment  debtor,  by 
deed  executed  before  the  entry  of  judgment,  although  unrecorded,  takes 
precedence  of  the  judgment.      Trenton  Bkg.  Co.  v.  Duncan,  86  N.  Y. 
221. 

1975.  The  fact  that  such  grantee  has  not  recorded  his  deed  creates 
no  equity  in  favor  of  the  judgment  debtor.     Trenton  Bkg.  Co.  \.  Dun- 
can, 86  N.  Y.  221. 

1976.  Although  the  recital   in  a  judgment-roll,  in  an  action  of 
foreclosure,  of  service  of  process   upon,  and  of  appearance  by,  a   de- 
fendant, is  not  conclusive,  and  evidence  is  admissible  on  the  part  of  a 
defendant  in  an  action  brought   to  foreclose  a  mortgage  to  show  that 
the  court  never  acquired  jurisdiction  of  his  person,  every  intendment 
is  in  favor  of  the  validity  of  the  judgment,  if  regular  on  its  face;  the 
burden  of  establishing  want  of  jurisdiction  is  upon  the  party  so  ques- 
tioning it,  and  it  should  be  established  in  the  most  satisfactory  manner 
to  deprive  the  judgment  of  its  effect.     Ferguson  v.  Crawford,  86  N. 
Y.  609. 

1977.  The  legal  title  to  a  judgment  recovered  in  an  action  brought 
by  the  surviving  member  of  a  firm,  in  his  name  as  survivor,  is  in  the 
plaintiff  the  same  as  if  the  cause  of  action  had  stood  in  his  own  right. 
Nehrbnss  v.  Bliss,  88  N.  Y.  600. 

1978.  When  securities  are  pledged  to  a  banker  or  broker  for  the 
payment  of  a  particular  loan  or  debt,  he  has  no  lien  upon  the  securi- 
ties for  a  general  balance  or  for  the  payment  of  other  claims.      Wychoff 
v.  Anthony,  90  N.  Y.  442. 

1979.  Under  the  Code  of  Procedure  a  money  judgment,  against  a 
non-resident  upon  whom  there  was  no  personal  service  of  summons, 
but  service  was  made  by  publication,  and  who  did  not  appear  in  the 
action,  cannot  affect  any  property  of  the  defendant  except  such  as  has 
been  taken  by  virtue  of  an  attachment  regularly  issued  in  the  action. 
McKinney  v.  Collins,  88  N.  Y.  216. 

1980.  Accordingly  held,  that  a  sale  of  real  estate  belonging  to 
the  defendant   under  an  execution   issued  in  an  action  against  a  non- 
resident wherein  the  service  of  the  summons  was  by  publication,  and 
no  attachment  had  been  issued,  gave  no  title  to  the  purchaser.     Me- 
Kinney  v.  Collins,  88  N.  Y.  216. 


272  MONROE'S  DIGEST 


JURISDICTION. 

1981.  A  General  Term  of  the  Supreme  Court  has  power  to  amend 
its  record,  after  an  appeal  to  this  court,  by  inserting  in  an  order  of  re- 
versal that  its  decision  was  made  upon  questions  of  fact.     Guernsey  v. 
Miller,  80  N.  Y.  181. 

1982.  Where  a  court,  authorized  by  statute  to  entertain  jurisdic- 
tion in  a  particular  case  onty,  undertakes  to  exercise  the  power  con- 
ferred in  a  case  to  which  the  statute  has  no  application,  it  acquires  no- 
jurisdiction  ;  its  judgment  is  a  nullity,  and  will  be  so  treated  when  it 
comes  in  question,  either  directly  or  collaterally.     Risley  v.  Phenix 
Bank,  83  N.  Y.  318. 


LACHES. 

1983.  As  a  proceeding  to  vacate  an  assessment  is  a  special  pro- 
ceeding, it  is  governed  by  the  limitation  prescribed   by  the  Code  of 
Civil  Procedure  (§§  388,  414),  and  a  delay  in  moving,  for  a  less  time 
than  there  limited,  is  not  fatal  to  the  proceeding.     In  re  Manhat.  Svgs. 
Instn.,  82  N.  Y.  142. 

1984.  A   promissory  note  dated  July  21,  1874,  was  by  its  terms 
made  "  payable  on  demand  after  date  "  at  a  bank,  with  interest  "  after 
maturity."     The  note  was  indorsed   and  transferred  by  the  payee  on 
the  day  of  its  date.     It  was  presented  for  payment  on  the  first  and 
fourth  days  of  February,  1878,  payment  demanded  and  refused,  and  on 
the  fourth  it  was  protested  and  the  indorser  notified.     In  an  action 
upon  the  note,  held,  that  it  was  the  intent  of  the  parties  that  the  note 
should  be  presented  for  payment,  if  not  immediately,  at  least  within  a, 
very  short  time ;  and  that  the  delay  in  this  case  was  such  as  to  dis- 
honor  the  note,  and  the  indorser  was  discharged.     Grim  v.  Stark- 
weather, 88  N.  Y.  339. 


LAPSE  OF  TIME. 

1985.  Trustee  and  cestui  que  trust. — Lapse  of  time  does  not  bar  a 
direct  trust  as  between  the  trustee  and  cestui  que  trust.  Otherwise  a& 
to  constructive  trusts.  Gastwell,  AdmSr  v.  Perkins,  2  Del.  102. 


LEASE. 

1986.  A  lease  to  a  corporation  is  not  terminated  by  its  dissolution, 
and  its  covenant  to  pay  rent  does  not  thereupon  cease  to  be  obligatory. 
People  v.  Nat.  Trust  Co.,  82  N.  Y.  283. 

1987.  The  words  "  grant "  and  "  demise  "  in  a  lease  for  years  ere- 


OP   STANDARD   DECISIONS.  275 

ate  an  implied  warranty  of  title  and  a  covenant  for  quiet  enjoyment, 
Stott,  et  al  v.  Rutherford,  92  U.  S.  107. 

1988.  A  covenant  in  a  lease  giving  to  the  lessee  a  right  or  option  to 
purchase  the  premises  leased  at  any  time  during  the  term,  is  in  the 
nature  of  a  continuing  offer  to  sell.  The  offer  thus  made,  if  under 
seal,  is  regarded  as  made  upon  sufficient  consideration,  and  therefore 
one  from  which  the  lessor  is  not  at  liberty  to  recede.  When  accepted 
by  the  lessee  a  contract  of  sale  is  completed.  Willard  v.  Taylor,  9 
Wall.  U.  S.  557. 


LIENS. 

1989.  A  lien  is  neither  property  nor  a  debt,  but  a  right  to  have 
satisfaction  for  a  debt  and  of  property,  and  is  not  the  subject  of  sale  or 
assignment.     Roberts,  et  al.  v.  Jacks,  31  Ark.  597. 

1990.  While  the  holder  of  a  debt,  secured  by  a  lien,  cannot  trans- 
fer the  lien  to  a  stranger,  without  also  assigning  the  debt,  he  may  re- 
lease  it  on  claiming  an  interest,  or  a  junior  lien  on  the  property. 
Buckner  v.  Mcllroy,  31  Ark.  631. 

1991.  In  exchanging  one  form  of  security  for  another  for  the  same 
debt,  no   other   lien   can   intervene  and   become   paramount  thereto. 
Thorpe  Brothers  v.  Durban,  et  al.,  45  Iowa,  192. 

1992.  Judgment  entered  on  an  assessment  note,  under  the  pro- 
visions of  the  charter  of  the  People's  Eire  Insurance  Company,  is  not 
a  general  judgment  which  may  be  enforced  against  any  property  of 
the  insurer,  but  is  restricted  as  a  lien  to  the  property  insured.     Half- 
penny v.  Th.e  People's  Fire  Ins.  Co.,  85  Penn.  St.  48. 

1993.  Where  the  note  or  other  written  obligation  of  a  third  person 
is  taken  by  the  vendor  of  real  estate,  he  thereb}'  waives  his  equitable 
lien.     Stevens  v.  Rainwater,  4  Mo.  Court  of  Appeals  (St.  Louis)  292. 

1994.  Workman  under  contractor  restrained  from  filing  his  claim 
for  lien   by  a  promise  of  the  owner  of  the  property  to  pay  him,  may 
hold  the  owner  answerable  on  his  promise.     Andre  v.  Bodman,  13  Md. 
241. 

1995.  A  judgment  docketed,  but  not  properly  indexed,  is  a  lien 
upon  land  in  the  hands  of  a  subsequent  purchaser,  without  notice. 
Old  Dominion  Granite  Co.,  et  al.  v.  Clarke,  et  al.,  28  Grattan  (Va.)  617. 

1996.  A   person  cannot  avail  himself  of  a   lien,  of  which  he  has 
been  fraudulently  prevented  by  his  own  acts.     Carey,  et  al.  v.  Brown, 
(2  Otto)  U.  S.  92,  171. 

1997.  The  lien  on  personal  property  secured  by  a  levy  is  neces- 
sarily released  when  the  levy  is  released,  and  a  reservation  of  tLe  lien 
is  of  no  effect.     McConnell  v.  Denhon,  72  Iowa,  494. 

1998.  An  execution  creditor  with  notice  takes  the  property  sub- 
ject to  any  lien  as  equity  that  might  be  enforced  against  the  judgment 
debtor.     Ibid. 

1999.  Policy  of  law  is  against  upholding  secret  liens  and  charges 
to   the   injury  of  innocent   purchasers  and  encumbrances  for  value. 
Palmer  v.  Howard,  72  Cai.  293. 

18 


274  MONROE'S  DIGEST 


LIMITATION  OF  ACTIONS. 

2000.  The  provision  of  the  Code  of  Civil  Procedure  (§  382,  sub. 
5)  limiting  the  time  for  the  commencement  of  "  an  action  to  procure  a 
judgment  other  than  for  a  sum  of  money,  on  the  ground  of  fraud,"  in- 
cludes all  cases  formerly  cognizable  by  the  Court  of  Chancery,  whether 
its  jurisdiction  therein  was  exclusive  or  concurrent  with  that  of  courts 
of  law,  in  which  any  remedy  or  relief  is  sought  for  aside  from  or  in 
addition  to  a  mere  money  judgment,  and  which  a  court  of  law  could 
not  give,  although  as  part  of  the  relief  sought  a  money  judgment  is 
also  demanded.  Carr  v.  Thompson,  87  N.  Y.  160. 


LOANS. 

2001.  Loan  by  a  non-trader  to  a  trader.  In  1858,  W.  D.,  Sr., 
opened  a  credit  of  $584  in  favor  of  his  daughter,  J.  D.  with  W.  D.  & 
Co.,  a  commercial  firm  in  Montreal,  consisting  of  the  appellant  and  one 
T.  D.,  W.  D.  &  Co.,  charging  W.  D.,  Sr.,  and  crediting  J.  D.  with  the 
amount.  In  1860,  W.  D.,  as  sole  executor  of  the  will  of  D.  D.,  cred- 
ited J.  D.  in  the  books  of  W.  D.  &  Co.  (appellant  at  that  time  being 
the  only  member  of  the  firm),  with  a  further  sum  of  $800,  the  amount 
of  a  legacy  bequeathed  by  such  will.  These  entries  in  the  books  of 
W.  D.  &  Co.,  together  with  entries  of  interest  in  connection  with  the 
said  items,  were  continued  from  year  to  year.  An  account  current  was 
rendered  to  J.  D.,  exhibiting  details  of  the  indebtedness  up  to  the  31st 
December,  1861.  After  31st  December,  1864,  the  firm  of  W.  D.  &  Co. 
consisted  of  the  appellant  and  his  brother,  T.  D.  In  December,  1865, 
another  account  was  rendered  to  J.  D.,  which  showed  a  balance  due  her 
at  that  time  of  $1,912.08.  The  accounts  rendered  were  unsigned,  but 
the  record  account  current  was  accompanied  by  a  letter,  referring  to  it, 
written  and  signed  by  the  appellant. 


OF   STANDARD  DECISIONS.  275 


MARKET  PRICE. 

2002.  The  market  price  of  a  marketable  commodity  may  be  de- 
termined as  well  by  offers  to  sell,  made  by  dealers  in  the  ordinary 
•course  of  business,  as  by  actual  sales;  and  statements  of  dealers  in 
.answer  to  inquiries  as  to  price,  are  competent  evidence.  Harrison 
v.  Glover,  72  N.  Y.  App.  451. 


MARRIED  WOMEN. 

2003.  Where  a  husband  left  this  State  for  California,  leaving  his 
*wife  in  charge  of  his  farm,  and  to   manage  the  same,  and  during  his 
absence  the  wife  sold  a  horse,  taking  a  note,  payable  to  herself,  for  the 
price,  and  indorsed  the  same  to  a  creditor  of  the  husband  in  payment 
of  his  debt,  and  the  husband,  on  his  return,  approved  the  same,  it  was 
held,  that  the  wife's  indorsement  could  be  sustained  on  two  grounds  : 
an    implied   authority  from   her  husband,  and  his  subsequent  ratifica- 
tion.    Nudge  v.  Bullock,  Adm'r,  83  111.  22. 

2004.  An  answer  of  a  married  woman,  made  to  an  action  by  the 
indorser  of  a  promissory  note  to  charge  her  separate  estate,  on  her  in- 
dorsenofent   thereof,  which  denies  that   she  intended  to  charge  her  sep- 
arate estate,  and  avers  that  she  indorsed  the  same  through  the  influence 
and  persuasion  of  her  husband,  and  not  of  her  own  free  will,  and  that 
«he  received  no  part  of  the  money  paid  for  said  note,  but  the  same  was 
used  for  the  sole  benefit  of  her  husband,  states  a  good  defence  to  such 
action.     The  indorsement  by  a  married  woman  of  a  promissory  note, 
solely  for  the  accommodation  of  her  husband,  and  as  surety  thereon, 
in  order  to  enable  him  to  dispose  of  the  same,  is,  of  itself,  not  sufficient 
to  warrant  a  court  of  equity  in  presuming  that  she  intended  to  charge 
her  separate  real  estate  with  the  payment  of  the  same.     Levi  v.  Earl, 
-30  Ohio,  147. 

2005.  A  married  woman  cannot  bind  herself  by  contract,  under 
Gen.  Stats,  ch.  164,  §   13,  unless  such  contract  is  in  respect  to  prop- 
erty held  by  her  in  her  own  right.     Blake  v.  Hall,  57  Hall,  N.  H.  373. 
A  contract   by  a  married  woman,  for  groceries  sold  to  her  upon  her 
promise  to  pay  for  the  same  out  of  wages  to  be  earned  by  her  under  a 
subsisting  contract  with  a  third  party,  is  not  a  contract  made  by  her 
in   her  own  right,  and  therefore   is  not  within  the  provisions  of  Gen. 
-Stats,  ch.  164,  §  13.     Muzzey  v.  Reardon,  57  Hall,  N.  H.  378. 

2006.  A  promissory  note  given  by  a  married  woman  and  her  hus- 
band for  property  purchased  by  her  as  sole  trader,  is  valid  in  law,  and 
the  amount  of  such  note  may  be  recovered  against  the  husband  and 
wife  in  an  action   of  assumpsit.     Barnes  v.   De  France,  '2  Colorado, 
-294. 

2007.  The  sale  or  mortgage  by  a  married  woman  of  her  separate 
property   for  the  payment  of  her  husband's  debts  may  be  enforced. 
Moore  v.  Fuller,  6  Oregon,  272. 

2008.  At  common  law,  the  promissory  note  of  a  married  woman 
is  void.     The  constitution  and  statute  of  this  State  make  no  change  in 


276  MONEOE'S  DIGEST 

this  respect.  Neither  at  law  nor  in  equity  can  she  bind  herself  so  a* 
to  authorize  a  personal  judgment  against  her.  Dollner,  Potter  &  Co. 
v.  Snow,  et  ah.,  16  Florida,  86. 

2009.  Where  money  is  lent  to  a  married  woman,  upon  an  agree- 
ment that  it  shall  be  applied  to  the  use  of  her  husband  or  his  firm,  she 
is  not  liable  on  a  note  given  by  her  therefor  prior  to  the  St.  of  1874,  c^ 
184.     Nourse  v.  Henshaw,  123  Mass.  96. 

2010.  In  the  case  of  a  purchase  by  a  wife  during  coverture,  the 
burden  is  upon  her  to  prove  distinctly  that  she  paid  for  the  thing  pur- 
chased with  funds  not  furnished  by  her  husband.     Evidence  that  she 
purchased  amounts  to  nothing,  unless  it  is  accompanied  by  clear  and 
full  proof  that  she  paid  for  it  with  her  own  separate  funds.     In  the 
absence  of  such  proof,  the  presumption  is,  that  her  husband  furnished 
the  means  of  payment.     Rose  &  Co.,etal.  v.  Brown, etvx.,\\  W.  Va.  122. 

2011.  Under  the  statute  (Laws  1874,  p.  185)  afemine  covert  is  no 
longer   sub  protestati  vim  in  respect  to  the  acquisition,  enjoyment,  and 
disposition  of  real  and  personal  property.     She  may  do  with  her  own 
property  as  she  will,  without  reference  to  any  other  restraints  or  disa- 
bilities of  coverture.     She  may  make  conveyance  directly  to  her  hus- 
band.    The  removal,  in  respect  to  the  wife,  of  a  disability  that  is  mu- 
tual, and  springing  from  the  same  source,  removes  it  also  as  to  the 
husband  ;  and  the  husband  may,  acting  in  his  own  right,  convey  to  the 
wife.      Wells  v.  Caywood,  3  Colo.  487. 

2012.  Separate  estate  is  presumed,  in  the  absence  of  proof  to  the 
contrary,  where  a  married  woman  signs  a  note  or  order  for  goods  or 
money.      Wilcoxson  v.  State,  60  Ga.  182. 

2013.  Married  woman  may  give  a  mortgage  upon  her  property  to 
secure   the   payment  of  a  debt  due  by  her  husband ;  and  a  mortgage 
executed  by  her  for  such  purpose  cannot  be  said  to  be  without  considera- 
tion.    Comegys  v.  Clarke  and  Comegys,  44  Md.  108. 

2014.  Neither   the  pecuniary   embarrassment,  nor  the  actual  in- 
solvency of  the  husband,  is  any  obstacle  to  a  transfer  by  the  husband 
to  the  wife,  in  good  faith,  for  the  replacing  of  her  money,  or  property,, 
used,  or  alienated  by  him.    Lehman,  Abraham  &  Co.  v.  Levy,  30  La.  745. 

2015.  A   married  woman,  in   the  absence  of  fraud,  or  of  knowl- 
edge thereof  on  the  part  of  the  beneficiaries  in  a  trust  deed,  given  on 
a  bona  fide  consideration,  cannot  impeach  the  certificate  of  the  officer 
taking  her  privy  acknowledgment.      Williams  v.  Poicers,  48  Texas  141. 

2016.  A  mistake  in  facts  will  always  be  remedied  by  the  courts  as 
far  as  can  be  done  consistently  with  right  and  justice  ;  but  if  the  mis- 
take is  purely  a  mistake  in  law,  they  will  not  interfere.      Carpenter  v. 
Jones,  et  al.,  ~Adm'rs,  44  Md.  625. 

2017.  A   clerical  error  in  entering  a  consent  decree  may  be  cor- 
rected by  the  original  draft  of  the  decree,  furnished  the  clerk  by  the 
court,  on    motion  at  any   time,  under  the  provisions   of  section  5  of 
chapter  134  of  the  Code.     A  consent  decree,  except  where  such  clerical 
error  has  occurred,  can  never  be  modified  or  altered  without  the  con- 
sent  of  parties,  not   even  during  the  term  at  which  it  was  entered. 
Manion  v.  Fahy,  1 1  W.  Ya.  482. 

2018.  When   money   is  paid  under  a  mutual  mistake  of  law,  the 
mistake  of  law  is,  in  and  of  itself,  no  ground  for  recovering  it  back- 
Cfalveston  Co.  v.Gorham,  49  Texas,  279. 


OF   STANDARD   DECISIONS.  277 

2019.  Any   mistake   or   misunderstanding    between    the  persons 
Conducting  a  judicial  sale,  and  intended  bidders  or  parties  in  interest, 
by  which  interests  are  prejudiced  without  fault  of  the  injured  party 
or   parties,  is   sufficient    cause   for   refusing   confirmation   and  order- 
ing a  re-sale.     Hilleary,  et  al.  v.  Thompson,  et  al.,  11  W.  Va.  113. 
A    suit    brought    by    G.    T.,   her    husband    and    universal    legatee, 
to   recover  the  $1,912.08,  with  interest,    from    31st  December,  1865  : 
Held,  (1)  That  a  loan  of  moneys,  as  in  this  case,  by  a  non-trader  to  a 
•commercial  firm  is  not  a  "  commercial  matter,"   or  a  debt  of  a  "com- 
mercial nature  " ;  that,  therefore,  the  debt  could  be  prescribed,  neither 
by   the   lapse   of  six   years    under    Consolidated    Statutes   of  Lower 
Canada,  ch.  67,  nor  by  the   lapse   of  five'  j-ears  under  the  Civil  Code 
of  Lower   Canada,    but   only    by    the    proscription    of    thirt}7    years. 
Whishaw  v.   Gilmour,  15    L.    C.,   R.  177,  approved.     (2)  That,  even 
if  the   debt   of  a  commercial   nature,   the   rendering  of  the  account 
current,  accompanied  by  the   letter  referring  to  it,  signed  by  the  ap- 
pellant, would  take  the  case   out  of  the  statute.     (3)  That  the  pro- 
scription of  five  years  against  arrears   of  interest,  under  Art.  2250 
of  the  Civil  Code   of  Lower    Canada,  does  not  apply  to  a  debt  the 
proscription  of  which  was   commenced  before  the  code  came  in  force. 
•(4)  That  entries  in  a  merchant's  books  make  complete  proof  against 
him.     Darling  v.    Brown,  1  Canada  Supreme  Co.  360. 

2020.  A  receipt  of  a  woman  before  taking  out  letters  of  adminis- 
tration by  which  surrendered  for  an  inadequate  consideration  rights  of 
herself  and  of  her  children,  in  her  husband's  estate,  on  which  she  af- 
terwards took  out  administration,  held  void,  as  hastily  and  inconsider- 
ately made,  and  when  influenced  by  a  friend,  himself  ignorant  of  many 
facts  in  the  case.     Gammack  v.  Lewis,  15  Wall.  U.  S.  643. 

2021.  As  incident  to  the   right  given  to   married  women  by  the 
act  of  1862  (chap  172,  Laws  of  1862),  to  acquire  property  by  purchase, 
she  may  purchase  property,  either  real  or  personal,  upon  credit,  and  is 
personally  liable  for  the  purchase-price  as  if  she  were  a /ewe  sole ;  and 
this  although  she  had  no  separate  estate  at  the  time  of  the  purchase, 
and    without    regard  to  the  question   as  to  the  purpose  for  which  the 
transaction  was  made.      Tiemeyer  v.  Turnquist,  85  N.  Y.  516. 

2022.  It  seems  that  when  a  married  woman  contracts  such  a  debt 
as  agent   for  her  husband,  she  is  not  personally  liable.     The  effect    of 
the  exception  in  the  provision  of  the  act  of  1860  (§1,  chap.  90,  Laws 
of  1860),  freeing  the  property  of  a  married  woman  from  the  control  of 
her  husband,  and  making  it  her  sole  and  separate  estate,  save  as  against 
-debts  contracted  by  her  as  the  agent  of  her  husband  for  the  support  of 
herself  and  her  children,  is  simply  to  leave  her  property  exposed  to  be 
taken  for  the  debt  so  contracted  as  if  the  statute  had  not  been  passed, 
it  does  not  make  her  personallv   liable  for  the  debt.      Tiemeyer  v. 
Tnrn<)iii8t,%5  N.  Y.  516. 

2023.  A  married  woman,  although  she  carries  on  no  business,  and 
has  no  separate  estate,  is  liable  for  a  debt  contracted  in  the  leasing  of 
real  estate.     Ackley  v.  Westervelt,  86  N.  Y.  448. 

2024.  A   contract  implied  by  law,  or   inferred  from  the  circum- 
stances, is  as  effectual  to  bind  a  married  woman  as  one  expressly 
created.     Ackley  v.  Westervelt,  86  N.  Y.  448. 

2025.  Where,  therefore,  a  married   woman  in  possession  of  real 


278  MONROE'S  DIGEST 

estate  under  a  lease  holds  over  after  the  expiration  of  her  term,  the  law 
implies  an  agreement  upon  her  part  to  a  holding  upon  the  terms  of  the 
lease,  and  the  implied  agreement  is  binding  upon  her.  Ackley  v.  West- 
ervelt,  86  N.  Y.  448. 

2026.  It  does  not  alter  the  character  of  the  holding,  or  change  or 
affect  her  liability,  that  she  occupied  the  premises  with  her  husband 
and  family  as  a  dwelling.     Ackley  v.  Westervelt,  86  N.  Y.  448. 

2027.  Plaintiff,  in  her  own  name,  deposited  a  certain  sum  with 
defendant.     In  proceedings  subsequently  commenced  against  defend- 
ant, supplementary  to  an  execution  against  plaintiff's  husband,  he,  she 
and  an  officer  of  the  defendant  appeared  before  a  referee  and  were  ex- 
amined.    Upon  the  report  of  the  referee  an  order  was  granted  by  the 
court  before  whom  the  proceedings  were  pending,  requiring  defendant 
to   pay  to  the  judgment  creditor  the  amount  of  the  deposit,  which 
order  defendant  obeyed.     In  an  action  to  recover  the  deposit  it  did  not 
appear  that  plaintiff  had  notice  of  the  application  for  the  order, .or 
that  she  was  heard  in  reference  thereto,  or  that  she  was  in  any  way  a 
party  to  the  application.     Held,  that   such  payment  was  no  defence  -r 
that    she   was   not   a   party   to   the   adjudication   or  bound  thereby. 
Schrauth  v.  Dry  Dock  Savings  Bank,  86  N.  Y.  390. 

2028.  A  married  woman  who  is  legal  owner  of  personalty  may 
sue  at  law  one  who  takes  it  and  converts  it  to  his  own  use;  and  such  a 
case  is  triable  by  jury.     Alt  v.  Meyer,  8  Mo.  App.  198. 


MARSHALLING   SECURITIES. 

2029.  The  assignee  of  certain  mortgages,  having  a  collateral 
security  for  money  advanced  upon  the  mortgages,  was  required  for  the 
benefit  of  junior  creditors  against  the  mortgaged  property,  first  to  ex- 
haust his  remedy  upon  the  collateral  security.  A  creditor  having  the 
security  of  two  funds  out  of  which  he  can  satisfy  his  debt,  upon  one  of 
which  only  another  creditor  has  a  junior  lien,  will  be  compelled  in 
equity  to  resort  first  to  the  fund  which  the  junior  creditor  cannot  reach. 
Logan,  et  al.  v.  Brick,  et  al.,  2  Del.  206. 

.2030.  A.  held  a  mortgage  on  two  tracts  of  land,  B.  also  held  a- 
mortgage  on  one  of  the  tracts ;  in  a  proceeding  by  A.  to  foreclose,  B. 
sought  to  compel  him  to  exhaust  the  tract  not  embraced  in  his  mort- 
gage first.  The  widow  of  the  mortgagor,  who  was  also  a  party,, 
claimed  a  homestead  in  the  latter  tract.  Held,  that  by  reason  of  the 
widow's  equity,  the  securities  should  not  be  marshalled.  Where  one 
creditor  has  a  security  upon  two  funds,  another,  having  a  security  on 
one  of  them,  may,  if  necessary  to  the  protection  of  his  security,  com- 
pel  the  other  to  resort  to  the  fund  embraced  in  it,  if  it  can  be  done 
without  prejudice  to  the  other  creditors  or  injustice  to  the  common 
debtor  or  third  persons  having  an  interest  in  the  fund,  Marr  v.  Lewis, 
31  Ark.  203. 

2031.  The  word  "  heirs  "  when  applied  to  the  succession  of  per- 
sonal estate,  means  next  of  kin  ;  the  latter  term  refers  to  relatives  by 
blood,  and  does  not  include  a  widow.  Tillman  v.  Davis,  95  N.  Y.  17* 


OF   STANDARD   DECISIONS.  279 


MISTAKES. 

2032.  Money  paid  under  a  mistake  of  a  material  fact  may  be  re- 
covered back  although  there  was  negligence  on  the  part  of  the  person 
making  the  payment,  unless  the  position  of  the  party  receiving  it  has 
been  changed  in  consequence  thereof,  and  it  would  be  inequitable  to 
allow  a  recovery.     If  circumstances  exist  taking  the  case  out  of  the 
general  rule  allowing  a  recovery,  the  burden  of  proving  them  rests 
upon  the  party  resisting  the  repayment.     Mayer  v.  The  Mayor,  18 
Sickels,  N.  Y.  455. 

2033.  Mistake  is  recognized  as  a  sufficient  ground  upon  which  to 
decree  the  reform  of  a  deed,  but  the  courts  exercise  their  power  in  this 
respect  with  great  caution,  and  only  upon  very  clear  and  satisfactory 
proof.     Mendenhall  v.  Steckell,  47  Md.  453. 

2034.  The   indorser,  upon   receiving  notice  of  protest,  sent  the 
money  to  take  up  the  bill.     The  holder,  under  an  honest  mistake,  in- 
formed him  that  it  was  taken   up  ;  in  consequence  of  which  he  was 
prevented  from  taking  up  the  bill  and  collecting  it  from  the  drawer, 
who  became  insolvent.     Held,  that  the  holder  could  not  afterwards  re- 
cover from  the  indorser.     He  was  estopped.     That  he  made  the  mis- 
statement  in  good  faith  makes  no  difference.     The  estoppel  applies,  not 
on  the  ground  of  wilful  fraud  in  making  the  representation,  but  that 
showing   the   representation,  to  be  true,  to  the  prejudice  of  the  in- 
dorser, would  be  a  fraud.     Kingsley  v.  Vernon,  N.  Y.  Superior  Court, 
4  Sandf.  361. 

2035.  The  defendant  having  several  contracts,  produced  one  of 
them,  supposing  it  to  be  a  different  one,  and  settled  with  plaintiffs, 
under  this  mistake.     Held,  that  under  the  circumstances  he  was  not 
estopped  from  proving  the  truth  of  the  case.     Young  v.  Bushnell,  8 
Bosw.,  N.  Y.  Superior  Ct.  1850,  1. 

2036.  Although  a  party  to  a  lease  may  be  misnamed  in  the  body 
of  the  writing,  yet  if  he  signs  it,  it  is  his  contract,  no  matter  by  what 
name  he  is  called  in  the  body  of  the  instrument.     Montanye  v.  Walla- 
han,  84  111.  355. 

2037.  To  avoid  an  agreement,  must  be  a  mistake,  not  of  law  but 
of  fact,  and  it  must  be  a  plain  mistake,  clearly  made  out  by  satisfactory 
proof — not  resting  upon  evidence  loose,  equivocal  or  contradictory. 
Pickering  v.  Day,  2  Del.  333. 

2038.  It  seems  that  a  mere  inadvertent  mistake,  made  by  a  bank- 
rupt in  stating  the  amount  of  a  debt,  will  not  avoid,  as  to  the  creditor, 
a  composition  made  under  and  in  pursuance  of  the  act  of  Congress  of 
June,  1874  (§  17),  amending  the   Bankrupt   Act.     Beebe   v.  Pyle,  71 
N.  Y.  20. 

2039.  In  a  suit  to  reform  a  deed,  lands  which  were  not  included 
in  the  deed,  but  omitted  by  mistake,  may  be  inserted  in  the  deed  as  re- 
formed.    Loomis  v.  Ramsey,  6  Oregon,  368. 

2040.  A  mistake  as  to  legal  rights  is  not  a  ground  for  equitable 
relief.      Weed  v*  Weed,  94  N.  Y.  243. 

2041.  The  general  jurisdiction  of  a  court  of  equity  to  set  aside  or 
reform  a  contract  on  the  ground  of  mistake  includes  executed  as  well 
as   executory   contracts ;    the   consummation   of   the   transaction,   in 


280  MONROE'S  DIGEST 

ignorance  of  the  mistake  and  without  laches  on  the  part  of  the  party 
injured,  gives  the  other  party  no  immunity  from  making  recompense, 
nor  does  it  deprive  the  court  of  the  power  to  remedy  the  injustice. 
Paine  v.  Upton,  87  N.  Y.  327. 

2042.  While  parol  evidence  is  admissible  to  show  a  mistake  in  a 
•written  agreement,  yet  to  justify  a  reformation  of  the  instrument  on 
that  ground,  the  mistake  should  be  proved  as  much  to  the  satisfaction 
of  the  court  as  if  admitted.     Ford  v.  Joyce,  78  N.  Y.  618. 

2043.  Presumption  that  a  customer's  note,  sent  to  bank  for  collec- 
tion, was  not  paid  by  it  through  mistake,  although  customer  had  no 
funds ;  also  when  question  of  mistake  is  one  of  fact.      Whiting  v.  City 
Bank,  77  N.  Y.  363. 

2044.  When  mistake  which  is  not  calculated  to  mislead  will  not 
•work  estoppel,  although  it  does  affect  the  conduct  of  a  party  to  his  in- 
jury.    H.  M.  Co.  v.  Farrington,  82  N.  Y.  121. 

2045.  In  an  action  against  a  surety  on  a  note  of  a  corporation,  it 
is  immaterial  that  the  security  at  the  time  supposed  that  the  principal 
maker  was  a  partnership,  whose   members   were   individually    liable. 
JBank  of  Monroe  v.  Gifford,  (14  Ebersole,  Iowa,)  72  state  reports,  750. 

2046.  In  order  to  warrant  a  court  of  equity  in  reforming  an  in- 
strument on  the  ground  of  mutual  mistake,  the  proof  of  the  mistake 
and  that  it  was  mutual  must  be  clear.     Where  the  complaint  alleges 
mistake  and  asks  relief  on  that  ground  alone,  the  court  will  not  re- 
form the  instrument  on  the  ground  that  one  of  the  parties  to  it  was 
guilty  of  a  fraud  in  executing  it.     The  complaint  should  point  out  the 
mistake  and  show  in  terms  what  the  tenor  of  the  instrument  ought  to 
be.     It  is  not  sufficient  to  say  that  it  was  the  intention  of  the  parties 
to  make  an  instrument  that  would  accomplish  a  certain  object,  and 
then  ask  the  court  to  make  a  writing  that  will  accomplish  that  object. 
'The  complaint  should  show  the  true  contract  in  its  terms.     Stephens 
v.  Murton,  6  Oregon,  193. 

2047.  Ignorance  of  a  fact  extrinsic  and  not  essential  to  a  con- 
tract but  which  if  known  might  have  influenced  the  action  of  a  party 
to  a  contract  is  not  such  a  mistake  as  will  authorize  equitable  relief; 
as  to  such  facts,  the  party  must  rely  upon  his  own  vigilance,  and  if  not 
imposed  upon  or  defrauded  will  be  held  to  his  contract.     Dambmann 
v.  Schulting,  75  N.  Y.  55. 

2048.  Defendant  in  an  action  for  conversion  of  property  can  only 
claim  a  mitigation  of  damages  because  of  a  return  of  the  property 
where  the  owner  has  accepted  its  return  or  has  resumed  dominion  over 
it  as  its  owner.     People  v.  Bank  of  North  America,  75  N.  Y.  5-18. 

2049.  Mistake  to  warrant  a  court  of  equity  in  reforming  a  written 
•contract  must  be  one  made  by  both  parties  to  the  agreement  so  that 
the  intention  of  either  is  expressed  therein  or  it  must  be  the  mistake 
•of  one  party  and  the  fraud  of  the  other  in  taking  advantage  of  it  and 
thus  obtaining  a  contract  with  the  knowledge  that  the  party  dealing 
with  him  is  in  error  in  regard  to  its  terms.     Paine  v.  Jones,  75  N.  Y. 
593. 


OF   STANDARD   DECISIONS.  281 


MONEY  COLLECTED  BY  AN  OFFICER. 

2050.  Money  collected  by  an  officer  on  legal  process,  while  it  re- 
mains in  his  hands  is  to  be  regarded  as  in  custodia  legis,  and  not  the 
subject  of  levy  or  attachment  in  any  form.  Thus,  an  officer,  who  has 
collected  money  on  an  execution,  cannot  apply  it  in  satisfaction  of  an- 
other execution,  although  the  latter  is  against  the  party  for  whom  the 
money  was  collected,  and  both  executions  are  in  the  officer's  hands  for 
collection  at  the  same  time.  Hardy  v.  Tilton,  68  Me.  195. 


MONEY  HAD  AND  RECEIVED. 

2051.  To  maintain  an  action  for  money  had  and  received,  it  is  nec- 
essary to  establish  that  defendant  has  received  moneys  belonging  to 
plaintiff,  or  to  which  he  is  entitled  ;  it  is  not  sufficient  to  show  that  de- 
fendant has,  by  fraud  or  wrong,  caused  the  plaintiff  to  pay  money  to 
others,  or  to  sustain  loss  or  damage.     Nat.  Tr.  Co.  v.  Gfleason,  77  N. 
Y.  400. 

2052.  One  G.  who  was  a  member  of  the  board,  defendant  herein, 
as  attorney  for  it  received  $3,600.84  of  its  money,  which  he  wrongfully 
appropriated  to  his  own  use ;  he  subsequently  procured  from  plaintiff 
on  a  forged  mortgage  $4,129.34,  which  he  deposited  in  a  bank  to  his 
credit,  and  on  the  same  day  drew  his  check  on  said  bank  to  defendant's 
order  for  the  amount  so  appropriated,  and  delivered  the  same  to  the 
defendant,  who  received  it,  without  notice  or  knowledge  of  the  fraud 
perpetrated  upon  plaintiff,  and  gave  G.  credit  therefor ;  the  check  was 
paid  and  the  money  received  thereon  used  by  defendant.     In  an  action 
to  recover  the  amount  so  received  by  defendant  from  G.,  held,  that  de- 
fendant having  received  the  money  in  good  faith,  and  in  the  ordinary 
course  of  business,  for  a  valuable  consideration,  was  not  liable.    Stephens 
v.  Ed.  Edn.,  79  N.  Y.  183. 


MORTGAGES. 

2053.  A.  made  a  promissory  note  payable  to  the  order  of  B.,  and 
executed  to  him  a  mortgage  of  land  as  security  therefor,  which  was 
duly  recorded.     B.  indorsed  the  note  to   C.,  and  afterwards  assigned 
the  mortgage  to  D.,  and  delivered  to  him  another  note  similar  in  terms, 
and  each  paid  a  valuable  consideration  to  B.    Held,  that  C.  was  entitled 
in  equity  to  au  assignment  of  the  mortgage  from  D.     Morris  v.  Bacon, 
123  Mass.  58. 

2054.  The  mortgagee  after  condition  broken,  may,  without  notice, 
enter  upon  the  mortgaged  premises  and  take  possession  thereof,  if  he 
can  do  so  peaceable  and  unresisted. 

2055.  .About  January  1,  1874,  the  plaintiff  went  away  on  a  visit, 
and  left  his  son.  a  lad,  in  care  of  the  premises ;  that  on  January  3,  the 
defendant  went  to  the  premises  and  enquired  of  the  boy  for  the  plain- 


282  MONROE'S  DIGEST 

tiff,  stepped  upon  the  doorstep,  and  proclaimed  that  he  took  possession 
of  the  premises  as  owner,  went  quietly  into  the  house,  which  was  un- 
fastened, the  boy  neither  resisting  nor  consenting,  removed  the  plain- 
tiff's goods  therefrom  to  an  open  shed,  and  left  them  there  in  the 
custody  of  the  boy,  and  fastened  up  the  house,  and  forbade  the  boy  to 
enter.  Fuller  v.  Eddy,  49  Rowell,  Vt.  11. 

2056.  In  a  writ  of  entry  brought  by  a  mortgagee  against  the  heirs 
of  the  mortgagor,  to  foreclose  a  mortgage  of  land,  it  is  good  defence 
that  the  mortgage  was  given  without   consideration  ;  and  parol  evi- 
dence is  admissible  to  show  that  no  debt  ever  existed  between  the 
parties  to  the  mortgage.     Hannan  v.  Hannan,  123  Mass.  441. 

2057.  A  mortgagee  who  makes  an  absolute  assignment  of  a  mort- 
gage to  her  agent,  can  claim  no  relief  as  against  a  bona  fide  holder  to 
whom  the  agent  assigned  it  as  security  for  his  own  debt.     Grocers' 
Bank  v.  Neet,  29  N.  J.  449. 

2058.  A  mortgagee's  power  to  sell  only  continues  as  long  as  the 
debt  exists.     When  the  debt  is  extinguished,  the  power  to  sell  ceases, 
and  an  attempt  to  exercise  it  is,  therefore,  ultra  vires,  and  transfers  no 
title,  unless  the  mortgagor  so  acts  as  to  estop  him  from  showing  the 
facts.     Ly coming  Fire  Ins.  Co.  v.  Jackson,  83  111.  302. 

2059.  A  bill  of  sale  of  a  vessel,  like  a  deed  absolute  on  its  face, 
may  be  shown  by  parol  to  be,  in  fact,  a  mortgage  only,  or  a  mere 
security  for  a  debt.     National  Ins.  Co.  v.  Webster,  83  111.  470. 

2060.  Where  a  party  sells  one  of  a  series  of  notes,  secured  by 
mortgage  on  certain  property,  without  warranty,  and  reserving  to  any 
holder  of  any  other  of  said  notes  equal  rights,  it  will  not  debar  him 
from  subsequently  proceeding  on  another  of  said  notes,  and  subjecting 
said  property  to  the  ratable  satisfaction  of  each  of  said  notes:    Howard 
v.  Schmidt,  29  La.  129. 

2061.  An   equitable   mortgage  may  arise  from  non-paj'ment  of 
purchase-money,  a  deposit  of  title  deeds,  or  an  unsuccessful  attempt  to 
make  a  valid  mortgage  deed.     Gale  v.  Morris,  29  N.  J.  222. 

2062.  Where  a  senior  mortgagee  forecloses  his  mortgages  without 
making  a  junior  mortgagee  of  the  same  premises  a  party  to  his  action 
for  the  foreclosure,  the  rights  of  the  junior  mortgagee  remain   un- 
affected, and  are  not  prejudiced  by  such  foreclosure.     Stewart  v.  John- 
son, 30  Ohio,  24. 

2063.  Where  one  person  advances  money  for  another  with  which 
to  purchase  the  title  to  land,  taking  the  conveyance  in  his  own  name, 
as  a  security  for  the  money  so  advanced,  with  interest,  his  deed  will  be 
treated  as  a  mortgage,  and  on  repayment  he  will  be  required  to  convey 
to  the  person  for  whom  he  so  purchased.     Strong,  et  al.  \.  Shea,  et  al., 
83  111.  575. 

2064.  The  holder  of  a  mortgage,  given  by  a  wife  with  her  hus- 
band's authority,  on  her  separate  property,  without  the  authorization 
of  the  judge  under  the  Act  of  1855,  must  prove  that  the  debt  which  the 
mortgage  was  given  to  secure  inured  to  the  wife's  separate  benefit,  be- 
fore he  can  hold  her  liable.     A  wife  separated  in  property  is  liable  for 
her  proportion  of  the  household  expenses,  and  for  the  whole  of  such 
expenses,  if  her  husband  is  without  means.     Mrs.  Mary  L.  Hardin  v. 

Wolf  &  Cerf,  29  La.  333. 

2065.  An  instrument  of  conveyance  that  on  its  face  purports  to 


OF  STANDARD   DECISIONS.  283 

be  given  to  secure  a  payment,  is  merely  a  mortgage.     Cowles  v.  Marble, 
37  Mich.  158. 

2066.  A  sale  by  a  mortgagee  has  the  same  effect  as  a  sale  by  the 
mortgaging  debtor.     A  mortgagee's  sale  relates  back  to  the  date  of 
the  mortgage,  so  far  as  to  cut  off  redemption  rights  under  titles  or 
liens  subsequent  to  the  date  of  the  mortgage,  and  to  substitute  for 
such  redemption  rights  the  pecuniary  surplus  from  sale,  which  surplus- 
is  treated  as  the  realty  would  have  been.     De  Wolfv.  Murphy,  11  R, 
I.  630;  Denton  v.  Nauny,  8  Barb.  S.  C.,  N.  Y.  618 ;  also,  Mills  v.  Van 
Voorhis,  23  Barb.,  20  N.  Y.  412. 

2067.  A  grantee  executed,  at  the  same  time  and  place,  two  mort- 
gages  on   the   same   lands,  one  a   purchase-money  mortgage  to  his 
grantor,  the  other  a  mortgage  to  secure  a  bond  given  by  himself  and 
three  sureties  to  W.,  for  $2,000,  which  were  paid  at  the  same  time  to 
the  grantor.     Held,  that  W.  could  not,  by  having  his  mortgage  regis- 
tered first,  acquire  a  priority  over  the  purchase-money  mortgage;  and 
that  W.'s  assignee  held  it  subject  to  the  same  equity.     Brasted  v.  Sut- 
ton,  29  N.  J.  513. 

2068.  Besides  a  mortgage  on  lands,  a  chattel  mortgage,  covering 
the  fixtures  thereon,  was  executed  at  the  same  time  and  to  secure  the 
same  debt,  consisting  of  several  bonds.     Held,  that  one  bondholder 
could  not,  by  obtaining  a  judgment  on  his  bond  and  levying  on  such 
fixtures,  acquire  a  preference  over  the  other  bondholders,  even  if  those 
fixtures  were  not  a  part  of  the  realty,  and  the  chattel  mortgage  had 
not  been  refiled  within  the  time  required.     Fish  v.  New  York  Water 
Proof  Paper  Co.,  29  N.  J.  16. 

2069.  A  lien  or  mortgage,  securing  a  negotiable  note,  passes  as  an 
incident  to  the  note,  to  the  assignee  or  indorser,  free  from  the  equities 
between  the  original  parties.     Duncan   v.  Louisville,  etc.,  13  Bush, 
Ky.  378. 

2070.  A  mortgage  given  to  secure  future  advances  or  indorse- 
ments is  valid  ;  it  is  a  conveyance  within  the  recording  acts,  and  sor 
may  be  recorded.     Ackerman  v.  Hunsicker,  85  N.  Y.  43. 

2071.  A  mortgage,  duly  recorded,  given  to  secure  future  indorse- 
ments or  advances,  has  a  preference  over  subsequent  judgments  against 
the  mortgagor,  as  well  as  to  indorsements  or  advances  made  upon  the 
faith  thereof  subsequent  to  the  rendition  of  the  judgments,  without 
notice  thereof  as  to  those  previously  made  ;  and  this  without  regard  to 
the  question  whether  the  indorsements  or  advances  were  optional  or 
obligatory.     Ackerman  v.  Hunsicker,  85  N.  Y.  43. 

2072.  Possession  of  real  estate  by  a  mortgagee,  acquired  b}~  force 
or  fraud,  against  the  will  and  consent  of  the  owner,  and  without  color 
of  lawful  authority,  is  not  a  defence  to  an  action  of  ejectment  brought 
by  such  owner.     Howell  v.  Leavitt,  95  N.  Y.  617. 

2073.  A  personal  obligation  on  the  part  of  a  grantee  to  pay  a 
mortgage  upon  the  premises  conveyed  may  not  be  implied  from  a  state- 
ment in  his  deed  that  the  conveyance  is  subject  to  the  mortgage,  and 
that  the  amount  thereof  "  forms  part  of  the  consideration,  and  is  de- 
ducted therefrom."     Eg.  L.  As.  Soc.  v.  Bostwick,  100  N.  Y.  628. 

2074.  A  convej'ance  to  a  trustee,  absolute  on  face,  but  with  instru- 
ment of  defeasance,  showing  an  intent  simply  to  secure  a  debt,  is  a 
mortgage.     Leal  v.  Walker,  111  U.  S.  242. 


284  MONROE'S  DIGEST 

2075.  A  mortgage  will  not  be  held  void  by  reason  of  vagueness  or 
uncertainty  in  the  description  of  the  mortgaged  premises,  if  by  any 
particulars  in  the  description  they  can  be  ascertained  so  as  to  enable 
the  court  to  say  that  the  words  used  were  intended  to  relate  to  them. 
People,  et  al.  v.  Storms,  97  N.  Y.  364. 

2076.  Where   a   purchaser   of  a  portion  of  mortgaged   premises 
assumes  and  agrees  to  pay,  as  part  of  the  purchase-price  the  whole 
mortgage,  he  becomes  the  principal  debtor,  the  mortgagor  remaining 
simply  a  surety ;    the  portion  conveyed  is  primarily   liable  for  the 
mortgaged  debt,  and  the  remainder  is  liable  as  security  merely.      Wil- 
vox  v.  Campbell,  106  N.  Y.  325. 

2077.  The  purchaser,  therefor,  is  bound  to  protect  the  mortgagor 
and  his  land  from  any  liability  on  account  of  the  mortgaged  debt. 
Ibid. 

2078.  This  obligation  on  the  part  of  the  purchaser  is  not  affected 
by  its  conveyance,  and  if  the  said  purchaser  fails  to  protect  the  residue 
from  sale  under  the  mortgage,  he  becomes  liable  to  the  grantee  thereof 
for  the  damages  thus  caused  him.     Ibid. 

2079.  The  grantee  of  the  remainder  is  not  bound  to  take  any 
steps  in  an  action  to  foreclose  the  mortgage  ;  it  is  the  duty  of  the  prin- 
cipal to  appear  therein  and  protect  the  interests  of  his  surety  ;  and  if  he 
fails  so  to  do  and  the  latter  is,  in  consequence,  deprived  of  his  land,  the 
value  thereof  is  the  fair  measure  of  his  damages.     Ibid. 

2080.  An  assumption  of  a  mortgage  contained  in  a  deed  and  to  a 
married  woman,  without  her  knowledge  or  consent,  and  never  delivered 
to  her,  does  not  bind  her.     Culver  v.  Badger,  29  N.  J.  74. 

2081.  A.  executed  a  deed  or  mortgage  of  land  containing  the  con- 
dition "  that  if,  on  demand,  there  shall  be  paid"  $1,000  on  a  certain 
promissory  note,  signed  by  A.  as  indorser,  then  the  deed  shall  be  void. 
The  note  was  signed  by  A.'s  son,  as  principal,  and  was  for  more  than 
$1,000,  and  was  given  on  account  of  a  defalcation  of  his,  and  upon  the 
giving  of  which  the  son  was  taken  back  into  the  promisee's  employ, 
upon  an  agreement  that  a  part  of  his  wages  should  be  applied  in  pa}'- 
ment  of  the  debt;  under  which  arrangement  more  than  $1,000  was  re- 
ceived by  the  promisee,  out  of  the  son's  wages,  leaving  more  than  $1,000 
due  on  the  note.     Held,  on  a  bill  in  equity  by  A.  to  redeem  the  mort- 
gage, that  the  amount  received  from  the  son's  wages  was  not  to  be 
credited  to  the  mortgage.     Popple  v.  Day,  84  111.  520. 

2082.  An  assignee  of  a  mortgage  takes  it  subject  to  all  defences 
existing  against  the  mortgagee  in  favor  of  the  mortgagor,  but  free  from 
latent   equities   existing   in  favor  of  third  persons.     De  Witt  v.  Van 
Sickle,  2<J  N.  J.  209. 

2083.  The  grantee  of  a  mortgagor  of  land    cannot,  because  of 
fraud  practiced  by  the  mortgagee  upon  the  mortgagor  in  obtaining  the 
mortgage,  maintain  a  bill  in   equity  against  an  assignee  of  the  mort- 
gagee to  restrain  a  sale  of  the  mortgaged  premises  under  a  power  in 
the  mortgage,  without  paying  the  entire  debt  secured  by  the  mortgage, 
although  the  mortgage  was  assigned  to  the  defendant  as  security  for  a 
less  amount.     Foster  v.  Wightman,  123  Mass.  100. 

2084.  An  assignment,  duly  recorded,  by  the  holder  of  a  mortgage 
containing  a  power  of  attorney  of  sale,  and  made  to  secure  two  notes 
for  $1,000  and  $2,000,  of  "  the  said  mortgage  deed,  the  real  estate 


OF   STANDARD   DECISIONS.  28t> 

thereby  conveyed,  so  far  as  the  same  is  security  for  said  note  of  $l,000r 
thereby  secured,"  transfers  the  mortgage  as  security  in  the  first  place, 
for  the  payment  of  the  whole  of  the  note  of  $1,000,  although  the  as- 
signment contains  no  covenant  of  warranty.  Foley  v.  Rose,  123  Mass. 
557. 

2085.  If  one  who  holds,  by  an  assignment  duly  recorded,  a  mort- 
gage and  a  note  indorsed  in  blank,  purporting  on  its  face  to  be  secured 
by  it,  "  the  same  being  collateral  to  "  a  certain  note,  assigns  the  mort- 
gage, and  afterward  indorses  the  note  for  which  it  was  collateral,  re- 
taining the  mortgage  note,  to  another,  by  an  assignment  in  like  words 
duly  recorded,  he  conveys  a  title  to  the  mortgage  debt,  except  as 
against  an  innocent  purchaser  for  value  without  notice ;  and  one,  to 
whom  he  subsequently  passes  the  mortgage  note  and  fraudulently  as- 
signs the  mortgage  upon  a  separate  paper  as  collateral  security  for  a 
loan,  is  not  such  a  purchaser.     Strong  \.  Jackson,  123  Mass.  60. 

20 86.  If  a  third  mortgagee  of  land,  which  is  subject  also  to  a 
fourth  mortgage,  sells,  under  power  of  sale  contained  in  his  mortgage, 
the  entire  title  in  the  land,  with  the  assent  of  the  prior  mortgagees,  for 
a  sum   sufficient  to  pay  off  all  the  four  mortgages,  the  fourth  mort- 
gagee can  maintain  an  action  against  him  for  money  had  and  received. 
Cook  v  Basley,  123  Mass.  396. 

2087.  A.,  for  the  purpose  of  enabling  B.  to  raise  money  for  him, 
made  a  promissory  note  payable  to  the  order  of  B.,  and  executed  to 
him  a  mortgage  of  land,  as  security  therefor,  which  was  duly  recorded. 
B.,  without  A.'s  knowledge  or  consent,  and  to  secure  his  own  debt,  de- 
livered the  note  unindorsed  to  C.,  and  afterwards  assigned  the  mort- 
gage and  a  note,  procured  from  A.  by  artifice,  to  D.  for  value.     Held, 
that   C.  was  not,  in  the  absence  of  fraud  on  the  part  of  D.,  entitled  in 
equity  to  an  assignment  of  the  mortgage.     Blunt  v.  Norris,  123  Mass. 
55. 

2088.  A  bona  fide  assignee  of  a  mortgage  is  entitled  to  hold  it  as 
against  the  original  owner,  who,  by  placing  it  in  her  agent's  hands  as- 
signed in  blank  or  for  a  particular  purpose,  gave  him  the  opportunity 
to  perpetrate  a  fraud  upon  her.     Putnam  v.  Clark,  29  N.  J.  412. 

2089.  The  unauthorized  cancellation  of  a  mortgage  by  the  re* 
corcler  of  mortgages  cannot  impair  any  rights  of  the  owner  of  the 
mortgage.     Mechanics'  Building  Association  v.  Ferguson,  29  La.  548. 

2090.  A  lessee  of  land  became  the  owner  of  an   undivided  por- 
tion of  it,  and  executed  a  mortgage  of  this  undivided  portion,  reciting 
that  a  part  of  the  premises  was  subject  to  a  lease,  and  that  the  leased 
premises  were  included  in  the  description  and  in  the  mortgage.     The 
mortgagee  afterward  entered  to  foreclose.     Held,  that,  even  if  the  lease 
passed  by  the  mortgage,  the  lessee  had  the  right  of  possession  against 
all  persons  except  the  mortgagee,  until  the  expiration  of  three  years 
from  the  entry,  and  could  maintain  an  action  of  tort,  for  a  trespass 
within  that  time,  against  a  third  person.    Martin  v.  Tobin,  123  Mass.  85. 

2091.  The    mere    fact    that  a  mortgagee  withholds   a   mortgage 
from  record  does  not  necessarity  invalidate  the  mortgage  as  against 
creditors  ;  it  may  have  effect  against  him  after  it  is  recorded,  unless  it 
is  impeached  for  fraud,  and  in  determining  that  question  such  with- 
holding   from    record    must  be    considered.      Black  v.  Euhlman,  40- 
Ohio,  196. 


286  MONROE'S  DIGEST 

2092.  Where  a  note  and  mortgage  are  once  barred,  a  subsequent 
revivor  of  the  note  by  a  part  payment,  promise,  or  acknowledgment  of 
the  payer,  will  revive  the  mortgage  so  far  as  it  affects  the  interests  of 
the  pay  or  in  the  mortgaged  premises.     But  such  revivor  of  the  note 
will  not  revive  the  mortgage  as  against  a  grantee  in  the  mortgaged 
premises  prior  to  the  revivor  of  the  note.     In  case  of  a  note  and  mort- 
gage,  the   latter   being   merely  an  incident  to  and  security  for  the 
former,  the  mortgage  is  not  barred  until  the  note  is.     Schmucker,  et 
<d.  v.  Sibert,  Assignee,  18  Kansas,  104. 

2093.  Whatever  will  validate  a  mortgage  between  the  parties  will 
validate  it  as  to  third  parties  with  notice.    Actual  notice  is  as  effectual 
.as  the  constructive  notice  of  record.     McAdow  v.  Block,  4  Mont.  475. 

2094.  M.,  one  of  the  defendants,  entered  into  a  contract  with  H. 
in   the  summer  of  1872  to  the  effect  that  H.  would  furnish  him  with 
building  materials,  and  M.  would  pay  H.  therefore  at  the  market  rates, 
A  portion  by  mortgage  and  a  balance  in  cash.     H.  furnished  the  ma- 
terials as  they  were  required  by  M.,  and  at  various  times  in  August 
and  September  M.  gave  H.  four  promissory   notes  for  $1,000  each. 
Three  of  the  notes  were  indorsed  by  H.  and  delivered  to  the  Manu- 
facturers' and  Builders'  Bank,  which  discounted  the  same  for  him. 
The  fourth  note  was  also  indorsed  by  H.  and  offered  by  him  to  the 
Eleventh  Ward  Bank  for  discount,  and  was  by  it  refused,  and  they 
never  paid  any  sum  to  him  on  the  credit  thereof;  but  when  applied  to 
by  H.  said  bank  refused  to  surrender  the  note,  but  claimed  to  hold  the 
.same  for  a   general  balance  of  account  owing  by  him  to  the  bank, 
arising  on  previous  dealings  with  him.     On  September  25,  1872,  M. 
And  wife  executed  and  delivered  to  H.  the  bond  and  mortgage  in  ques- 
tion to   secure  the  sum  of  $7,000,  which  was  justly  owing  to  H.  for 
materials  furnished,  and  in   final  settlement  of  the  amount  for  such 
materials  a  credit  was  given  by  him  on  account  of  said  mortgage  for 
the  full  face  thereof.     H.  promised  to  pay  the  three  notes  discounted 
for  him  by  the  Manufacturers'  and  Builders'  Bank  out  of  the  proceeds 
-derived  from  the  sale  of  the  mortgages,  and  also  to  procure  and  sur- 
render to  M.  the  note  offered  to  the  Eleventh  Ward  Bank  for  discount, 
but  he  was  prevented  from  performing  this  promise  by  the  bank's  re- 
fusing to  surrender  the  same.     It  was  not  intended  or  agreed  at  the 
time  the  bond  and  mortgage  was  delivered  to  H.  that  it  was  to  be  as- 
signed to  the  Manufacturers'  and  Builders'  Bank  as  security  for  the 
notes  held  by  them  or  for  any  other  purpose,  and  the  only  agreement 
relating  to  said  notes  was  as  above  stated.     H.  assigned  the  bond  and 
mortgage  to  Daniel  P.  Ingraham,  Jr.,  who  assigned  the  same  to  Edward 
B.  Stead  (both  assignments  being  for  a  valuable  consideration),  who 
afterwards  duly  assigned  the  same  to  plaintiff,  who  paid  therefor  the 
sum  of  $6,700.     The  plaintiff  had  no  notice  or  knowledge  of  any  claim 
or  equity  against  said  bond  and  mortgage,  and  as  an  inducement  to 
purchase  the  same  there  was  shown  and  delivered  to  him  a  certificate 
•of  both  of  the  mortgagors,  asserting  said  bond  and  mortgage  to  be 
valid  and  free  from  all  defences  and  equities.     In  action  to  foreclose 
the  mortgage,  Held,  that  the  bank  had  no  right  upon  declining  a  dis- 
count to   retain  the  note,  and  its  action  was  clearly  tortious.     The 
bankers'  lien  does  not  extend  to  such  paper. 

2095.  Held,  further,  that  even  if  the  right  to  hold  the  note  were 


OF   STANDARD  DECISIONS.  287 

established,  the  banker  had  no  possible  equity  in  the  mortgage.  Such 
An  equity  could  attach,  if  at  all,  only  in  favor  of  one  who  had  actually 
negotiated  the  note  or  parted  with  the  value  upon  the  strength  of  the 
securitv. 

2096.  Although,  as  to  the  receiver  there  is,  perhaps,  a  case  of  a 
latent  equity  arising  out  of  an  implied  trust,  such  an  equity  is  not  to 
be  preferred  to  that  of  a  bona  fide  assignee  for  value  received.     Equity 
will  not  aid  a  cestui  que  trust  against  a  bona  fide  purchaser  (from  a 
trustee)  without  notice  of  the  trust.     Where  the  mortgage  was  ulti- 
mately given  to  H.  without  reserve  and  with  a  mere  understanding  as 
to  the  application  of  the  proceeds,  no  equity  is  raised  in  the  security, 
certainly  not  as  against  the  plaintiff,  who  has  paid  full  value,  and  who 
could  not,  by  any  proper  enquiry,  have  learned  of  the  latent  equity. 
Petrie  v.  Myers,  et.  al.,  54  Howard,  N.  Y.  513. 

2097.  The  plaintiff,  being  embarrassed,  upon  defendant's  advice 
conveyed  to  him  real  estate,  on  defendant's   parol  promise  that  he 
would  obtain  from  a  building  association,  on  the  security  of  the  real 
•estate,  a  loan,  with  which  he  would  pay  plaintiff's  liabilities,  repay  the 
loan  from  the  rents,  and  reconvey  to  plaintiff  when  the  loan  should  be 
repaid.     Held,  that  the  transaction  was  a  mortgage.     The  purpose  not 
•being  to  sell,  but  convey  as  security,  it  is  immaterial  that  defendant 
was  to  procure  the  money  at  a  future  time  and  from  a  third  person. 
The  defendant  received  the  deed  without  consideration,  except   his 
promise  to  raise  the  money  for  plaintiff;  if  it  was  not  intended  to  be 
raised  it  would  be  a  fraud,  and  the  defendant  a  trustee  ex  maleficio. 
The  plaintiff's  bill  charged  that  defendant  held  in  trust  for  him  ;  did 
not  allege  that  he  was  mortgagee,  and  prayed  for  account  and  recon- 
veyance ;  it  was  dismissed  below  on  the  ground  that  there  was  no 
trust.     The  facts  set  out  showing  it  to  be  a  mortgage,  the  Supreme 
•Court  sustained  the  bill,  to  reach  the  justice  of  the  case,  disregarding 
the  use  in  the  bill  of  inappropriate  terms.     Danzeiserfs  Appeal,  73 
Penn.  65  ;  Bernet  v.  Dougherty,  8  Casey,  371  ;  Sweetzer 's  Appeal,  21  P. 
F.  Smith,  N.  Y.  264. 

2098.  In  August,  1872,  F.  and   H.  executed  a  joint  note  to  G., 
payable  in  one  year.     On  the  face  of  the  note  each  appeared  as  princi- 
pal.    The  note  was,  in  fact,  given  for  borrowed  money,  and  the  money 
was  borrowed  for  F.,  and  received  and  used  by  him.     To  secure  this 
note  H.  gave  a  mortgage  on  certain  real  estate,  which  mortgage  was 
•duly  recorded.     In   September,  1873,  F.  handed  to  H.  the  amount  of 
the  loan,  and  took  from  him  a  receipt  therefor,  in  which  the  latter 
promised  to  pay  the  note,  but  instead  of  then  paying  it,  he  obtained  an 
extension  of  a  year,  by  the  payment  of  advance  interest  and  a  bonus. 
In  January,  1874,  H.  borrowed  money  of  S.,  and  gave  a  note  secured 
l>y  a  mortgage  on  the  same  and  other  property.     In  September,  1874, 
F.  paid  to  G.  the  amount  then  due  on  the  note,  and  took  an  assign- 
ment without  recourse.     Held,  that  at  the  first  E.  was  to  be  regarded 
fis  the  principal  debtor,  and  that  a  payment  by  him  to  the  payee  of  the 
note,  prior  to  September,  1873,  would  have  discharged  both  note  and 
mortgage  absolutely  ;  but  that  by  the  payment  in  September,  1873, 
from  F.  to  H.,  the  promise  of  the  latter  to  pay  the  note,  and  the  ob- 
taining of  a  year's  extension  of  the  time  of  payment,  H.  became  in 
equity  the  principal  debtor ;  and  that  as  all  this  took  place  before  the  note 


288  MONROE'S  DIGEST 

and  mortgage  to  S.,  the  latter's  rights  were  in  no  way  prejudiced ;  and 
that  F.  by  his  subsequent  payment  to  G.,  and  the  assignment  of  the 
note,  was  entitled  to  hold  that  note  and  mortgage  as  a  valid  and 
prior  lien  upon  the  mortgaged  premises.  Field  v.  Sherrill,  18  Kan- 
sas, 365. 

2099.  A  third  person  cannot  be  affected  by  any  notice  of  a  mort- 
gage, except  the  notice  conveyed  to  him  by  the  inscription  of  the 
mortgage.     All  are  third  persons,  except  the  parties.     The  inscription 
of  a  mortgage,  after  the  lapse  often  years  from  the  date  of  inscription,, 
unless  reinscribed,  is  utterly  void  as  to  third  persons,  and  is  no  longer 
any  proof  of  the  mortgage,  even  between  the  parties  to  it.     Adams  & 
Go.  v.  Daunts,  29  La.  315. 

2100.  Purchasers  of  non-negotiable  demands   from   others  than 
original  owner  of  them  can  take  only  such  rights  as  he  has  parted  with 
except  when  by  his  acts  he  is  estopped  from  asserting  his  original 
claim.     He  must  in  such  cases,  as  Lord  Thurlow  said,  "  Abide  by  the 
case  of  the  person  from  whom  he  buys."     Cuts  v.  Guild,  57  N.  Y.  229  ;. 
Ingraham  v.  Disborough,  47  N.  Y.  421  ;  Bush  v.  Lathrop,  22  N.  Y. 
535  ;  Cowdrey  v.  Vandenburgh,  101  IT.  S.  575. 

2101.  The  rule  that  one  who  has  purchased  and  received  a  con- 
veyance of  a  portion  of  mortgaged  premises  may  require  that  all  of  the 
balance  shall  first  be  sold  to  satisfy  the  mortgage,  before  resort  shall  be 
had  to  his  portion,  applies,  although  part  of  the  residue  is  situated  in 
another  State.      Welling  v.  Eyerson,  94  N.  Y.  98. 

2102.  The  assignee  of  a  mortgage  is  not  affected  by  a  collateral 
agreement  between  the  mortgagor  and  mortgagee,  made  at  the  time  of 
the  execution  of  the  mortgage,  of  which  he  had  no  notice,  and  in  a  suit 
upon  the  mortgage  by  the  assignee  said  agreement  cannot  be  set  up  as- 
a  defence.     Me  Masters  v.  Willhelm,  85  Penn.  St.  218. 

2103.  When  a  part}',  who  was  indebted  to  another,  executed  a 
conveyance  to  secure  the  indebtedness,  and  received  from  the  grantee 
an  instrument,  binding  him  to  reconvey  upon  payment  of  the  debt ; 
held,  that  the  transaction  constituted  a  mortgage,  and  that  it  was  not 
competent  for  the  grantor  to  insist  upon  a  foreclosure  thereof,  but  that 
he  must  pay  the  amount  due  before  he  could  ask  the  cancellation  of  the 
conveyance.      White  v.  Lucas,  46  Iowa,  319. 

2104.  A  purchaser  from  a  mortgagor  may  recover  the  land  mort- 
gaged, in  trespass  to  try  title,  against  parties  holding  under  a  fore- 
closure sale,  to  which  the  plaintiff  was  not  a  party.     Such  foreclosure 
proceedings  do  not  affect  the  right  of  a  purchaser  from  a  mortgagor 
prior  to  the  suit  for  foreclosure,  and  not  made  a  party  to  such  suit. 
Morrow  v.  Morgan,  48  Texas,  304. 

2105.  In  an  action  to  recover    upon    certain  promissory  notes, 
and  to  foreclose  a  real  estate  mortgage  given  to  secure  the  payment  of 
the  notes,  where  the  judgment  required  the  defendant  to  pay  the  debt 
and  costs  within  one  day  after  its  rendition  and  on  default  thereof,  the 
clerk   is  directed  to  issue  a  special  execution  to  sell  the  real  estate 
to    satisfy    the   judgment;    held,  not    erroneous    because    no    more 
time  is  allowed.     The  debtor  to  raise  and  pay  the  money  prior  to  the 
issuance  of  the  special  execution.     Blandins,  Adm'r  v.  Wade,  20  Kan- 
sas, 251. 

2106.  The  clause  in  a  mortgage,  fixing  the  fees  of  the  creditor'* 


OF   STANDARD   DECISIONS.  289 

attorney  of  five  per  cent,  in  the  event  of  the  non-payment  of  the  debt 
at  its  maturity,  makes  the  debtor,  on  the  happening  of  the  event,  ab- 
solutely liable  for  that  amount;  and  this  liability  cannot  be  affected  by 
the  fact  the  creditor  has  not  really  paid,  or  obligated  himself  to- 
pa}7,  that  amount  of  attorney's  fees.  Henshaw  v.  Richards,  30 
La.  398. 

2107.  A  man  may  make  a  valid  mortgage  for  the  payment  of 
money,  without   particularly  describing   the  writing  which   may  be 
evidence  of  the  debt,  or  without  even  giving  any  independent  written 
evidence  thereof.     But  he  is  not  at  liberty  to  substitute  a  different  con- 
dition, by  parol  evidence,  for  that  which  he  expressed  in  his  deed.     A 
man   may  mortgage  to  an  agent  in  order  to  procure  credit  from  his 
principal,  and  the  agent  may  enforce  the  mortgage  as  the  trustee  of  his 
principal.      Varney  v.  Hawes,  68  Me.  442. 

2108.  When  a  mortgagee  has,  upon  demand,  rendered  a  true  account 
of  the  amount  due  upon  the  mortgage,  a  bill  in  equity  to  redeem  can- 
not be  maintained,  unless  the  plaintiff  first  tender  to  the  mortgagee  the 
amount  due,  or  is  prevented  from  so  doing  through  the  fault  of  the 
mortgagee.     Dinsmore  v.  Savage,  68  Me.  191. 

2109.  The  same  rule  as  to  the  necessity  of  registration,  in  order 
to  give  a  priority  of  title,  prevails  between  different  assignees  of  a 
mortgage  as  between  grantees  under  ordinary  deeds.     A  mortgagee 
assigned  the  mortgage  thus :  "  I  hereby  assign  to  the  said  (assignee) 
the  within  mortgage  deed,  the  debt  thereby  secured,  and  all  my  right, 
title  and  interest  in  the  premises  therein  described."     Held,  that  this 
assignment,  having  been  recorded,  transfers   the   mortgage   title   as 
against  a  prior  unrecorded  deed  of  the  same  land  by  the  mortgagee, 
unless  it  is  shown  that  the  assignee  had  actual  notice  of  the  prior  deed. 
Wiley  v.  Williamson,  68  Me.  71. 

2110.  A  mortgagee  of  real  estate,  before  foreclosure  of  his  lien, 
even  when  the  mortgagor  is  insolvent,  and  the  mortgaged  premises  in- 
sufficient to  pay  the  mortgage  debt,  cannot  maintain  an  action  against 
one  who  has  removed  an  engine  and  boiler  from  the  mortgaged  premises, 
and  sold  them,  to  recover  the  value  of  the  property  so  taken  and  con- 
verted.    Alexander  v.  Shonyo,  20  Kansas,  705. 

2111.  R.  mortgaged  to  S.  certain  land,  on  which  was  a  grist  mill, 
and  in  which  mill  were  certain  fixtures.     Afterwards  R.,  for  the  pur- 
pose of  defrauding  S..  severed  said  mill  fixtures  from  the  mill,  and  sold 
and  delivered  them  to  K.,  who  purchased  and  received  the  same  for  a 
like  purpose.     Held,  that  said  mill  fixtures  belonged  to  R.  until  he  sold 
them  to  K.,  and  that  they  never  became  the  property  of  S.,  and  that 
neither  S.,  nor  any  person  claiming  under  him,  can  maintain  replevin 
against  K.  for  them.      Vanderslice  v.  Knapp,  20  Kansas,  647. 

2112.  A  mortgage  of  land  to  "  Pinson,  Dillard  &  Co."  is  not  void 
for  uncertainty,  in  not  giving  the  surnames  of  some  of  the  members  of 
the  firm,  and  in  omitting  the  Christian  names  of  all  of  them.     And 
even  if  the  title  only  vested,  by  the  conveyance,  in  those  whose  sur- 
names were  mentioned,  the  mortgage  would  enure  to  the  benefit  of  all 
of  the  members  of  the  firm,  and  they  might  all  join  in  the  suit  to 
enforce  it.     A  mortgage  given  for  preexisting  debt  is  not  invalid  for 
want  of  valuable  consideration,  as  against  a  prior  unrecorded  mort- 
gage, where  the  time  of  payment  of  the  debt  is  extended  by  a  uote> 

19 


290  MONROE'S  DIGEST 

taken  four  days  before  the  execution  of  the  mortgage,  formed  one 
transaction.     Schumpert  v.  Dillard,  Pinson  &  Co.,  55  Miss.  348. 

2113.  When  a  mortgagor  conveys  real  estate,  and  the  conveyance 
contains  a  statement  that  the  grantor  will  assume  and  pa}'  the  note 
which  the  mortgage  is  given  to  secure,  and  the  grantee  accepts  the 
same,  and  enters  into  possession  of  the  premises,  he  becomes  directly 
and  personally  liable  to  the  holder  of  the  note  and  mortgage  for  the 
amount  due.    Fitzgerald  v.  Barker,  4  Mo.  Court  of  Appeals  (St.  Louis) 
105. 

2114.  Omitting  to  name  the  State,  county,  and  township,  in  the  de- 
scription of  premises  in  a  mortgage,  will  not  invalidate  the  instrument, 
where  other  adequate  elements  of  identification  exist ;  and  it  is  not 
•essential  that  the  property  should  be  so  described  as  to  identify  it  with- 
out the  aid  of  extrinsic  proofs,  but  it  is  always  competent  to  connect 
the  written  description  with  the  material  subject  matter  by  proof  of 
the  surrounding  circumstances.     Where  there  are  descriptive  signs 
satisfactorily  ascertained  which  designate  the  thing  meant  to  be  granted, 
the  addition  of  circumstances  or  accompaniments  which  are  untrue, 
will  not  defeat  the  grant,  but  they  will  be  rejected.     Slater  v.  Breeze, 
36  Mich.  77. 

2115.  A  bill  in  equity  alleged  that  A.  purchased  an  estate  with  the 
plaintiff's  money,  and  had  it  conveyed  to  his  wife,  who  took  it,  with 
notice  of  the  same  ;  that  A.  and  his  wife  mortgaged  the  estate  to  B., 
who  assigned  the  mortgage  to  C.,  both  of  whom  had  notice  of  the  re- 
sulting trust  to  the  plaintiff.     A  decree  was  made  that  C.  assign  the 
mortgage  to  the  plaintiff.     Held,  that  an  assignment  was  unnecessary, 
and  would  impair  the  rights  of  the  defendants  among  themselves;  and 
that  the  mortgage  should  be  discharged  by  a  deed  of  release  to  the 
plaintiff,  or  by  an  entry  upon  the  margin  of  the  record  of  the  mortgage 
in  the  registry  of  deeds.     Harwood  v.  Pearson,  122  Mass.  425. 

2116.  The  unauthorized  cancellation  of  record  of  a  mortgage  by 
the  clerk,  or  register,  without  the  knowledge  or  consent  of  the  mort- 
gagee, will  not  affect  the  rights  of  the  latter  under  the  mortgage,  even 
as   against  a  bona  fide  purchaser  of  the  mortgaged  premises,  with 
notice  of  the  mortgage,  though  he  has  no  notice  that  the  cancellation 
was  unauthorized,  and  presumed,  from  the  certificate  of  cancellation, 
that  the  lien  of  the  mortgage  was  extinguished.     A  mortgage  may  be 
assigned  by  delivery  merely.     Harris  v.  Cook,  28  N.  J.  Eq.  345. 

2117.  The  holder  of  two  mortgages  on  the  same  parcel  of  land 
•entered  to  foreclose  the  first  mortgage,  but  did  not  enter  under  the 
second  mortgage.     A  bill  in  equity  was  brought  against  him  to  re- 
deem the  first  mortgage,  and  in  his  answer  he  did  not  set  up  the  second 
mortgage.     A  decree  was  entered  that,  on  payment  of  a  certain  sum, 
•he  should  release  and  discharge  the  mortgaged  premises,  described  in 
the  bill,  from  the  mortgage  therein  described,  and  should  deliver  up 
possession  of  the  premises.     Held,  on  a  subsequent  bill  in  equity  to 
obtain  the  discharge  of  the  second  mortgage,  that  he  was  not  estopped 
to  set  up  the  second  mortgage.     Gerrish  v.  Black,    122  Mass.  76. 

2118.  Mortgage  having  been   made  to  secure  several  negotiable 
notes,  and  the  notes  having  been  passed  to  several  different  holders, 
and  one  of  the  holders  having  obtained  a  general  judgment,  and  another 
having  foreclosed  the  mortgage  in  the  name  of  the  mortgagee  for  his 


OF   STANDARD   DECISIONS.  291 

•use,  a  sale  of  the  premises  under  the  general  judgment  passed  the  title 
free  from  the  mortgage  lien,  the  attorney  representing  the  judgment 
of  foreclosure  having  placed  the  execution  founded  thereon  in  the 
Lands  of  the  officer  of  the  law  making  the  sale,  and  caused  the  title, 
unincumbered,  to  be  sold,  and  there  being  no  fraud  in  the  sale,  and  the 
premises  having  brought  full  value,  or  an  amount  approximating 
thereto.  The  notes  not  covered  by  either  judgment  cannot  be  enforced 
against  the  land,  but  are  thrown,  in  equity,  upon  the  fund  produced  by 
the  sale,  for  their  pro  rata  share  thereof.  Smith,  et  al.  v.  Bourne,  et  al., 
£0  Ga.  484. 

2119.  Under  the  Code  (§  1955)  a  mortgage  must  ^clearly  indicate 
the  creation  of  a  lien,  and  specify  the  debt  to  secure  which  it  is  given. 
A  deed  in  fee  simple,  without  condition  or  defeasance,  and  a  bond  for 
titles  from  the  grantee  to  the  grantor,  in  which  bond  the  grantee  obli- 
gates himself  to  convey  the  premises  to  the  grantor  on  the  payment  of 
a  sum  of  money,  do  not  separately  or  together  indicate  the  creation  of 
a  mere  lien  ;  but  the  purpose  indicated  is  to  divert  the  grantor  of  title, 
and  to  vest  title  in  the  grantee  until  the  payment  of  the  debt.     To  take 
•a  bond  for  a  future  conveyance,  and  then  deny  that  the  maker  thereof 
had  any  estate  in  the  premises  at  the  time  he  gave  the  bond,  no  fraud 
-or   mistake  being  alleged,  is  idle  and  inconsistent.     If  a  judgment 
•creditor,  whose  judgment  is  junior  to  an  absolute  deed  made  to  secure 
another  creditor,  can  subject  the  land  without  redeeming,  or  offering 
to  redeem,  it  is  because  the  Registry  laws  have  not  been   complied 
with,  or  else  because  the  debtor  having  retained  possession,  the  con- 
veyance is  to  be  deemed  fraudulent.     Gibson  v.  Hough  &  Sons,  60  Ga. 
-588. 

2120.  A  bill  of  sale  whereby  a  debtor  conveys  personal  property 
to  his  creditor  as  security,  and  which  provides  that  the  property  shall 
remain  in  the  debtor's  possession,  and  he  have  thirty  days  to  redeem 
•by  paying  the  debt,  is  a  mortgage.     Blodgett  v.  Blodgett,  48  Vt.  32. 

2121.  A  mortgagor  of  personal  property,  after  condition  broken, 
has  an  equity  of  redemption  that  ma}r  be  asserted  if  he  brings  his  bill 
to  redeem  within  a  reasonable  time.     Ibid. 

2122.  A  tender  of  the  amount  of  the  debt  after  the  law  day  has 
passed,  unaccepted,  does  not  divert  the  mortgagee  of  his  legal  right  to 
the  property  mortgaged;  and  Chancery  has  jurisdiction  to  decree  re- 
demption.    Ibid. 

2123.  When  the  mortgagee  disposes  of  the  property,  after  tender 
made,  and  before  final  hearing,  that  an  order  for  its  delivery  cannot  be 
made,  a  decree  ma}'  be  entered  for  the  amount  of  the  mortgagor's 
interest  therein.     Ibid. 

2124.  While  it  is  not  lawful  for  banking  associations,  established 
under  the  U.  S.  St.  of  1864,  c.  106,  to  purchase,  hold  and  convey  real  es- 
tate, except  in  certain  specified  cases,  among  these  exceptions  are  in- 
cluded such  real  estate  "  as  shall  be  mortgaged  to  it  in  good  faith  by  way 
of  security  for  debts  previously  contracted  ;  such  as  shall  be  convej'ed  to 
it  in  satisfaction  of  debts   previously  contracted  in  the  course  of  its 
dealings;  such  as  it  shall  purchase  at  sales  under  judgments,  decrees, 
or  mortgages  held  by  such  associations,  or  shall  purchase  to  secure 
debts  due  to  said  association."     Under  the  latter  clause,  it  cannot  be 
-deemed  that  the  only  authority  given  to  such  associations  is  to  pur- 


MONROE  S    DIGEST 

chase  only  to  the  exact  amount  of  the  debts  which  may  be  owing  to 
them,  but  they  are  entitled  to  purchase  such  real  estate  as  may  be 
necessary  in  order  to  secure  the  debts  due  to  them,  so  long  as  the 
security  of  such  debts  is  the  real  object  of  the  purchase.  By  oral  evi- 
dence it  was  proved  that  a  bankrupt  applied  to  th«  defendant  for  a 
loan  of  a  certain  sum  to  enable  him,  together  with  his  own  funds,  to- 
take  up  the  mortgage ;  that  the  defendant  lent  him  the  sum  requested 
(13,000),  upon  his  verbal  promise  to  assign  the  mortgage  to  him  to 
secure  the  sum  lent  and  certain  notes  then  due  ($911)  to  the  defend- 
ant by  the  bankrupt.  The  claim  that  this  was  a  loan  of  money  upon 
real  estate  security,  or  a  purchase  of  real  estate,  is  not  maintained,, 
when  it  is  found,  as  a  fact,  that  the  inducement  to  this  transaction  was 
the  agreement  that  the  mortgage,  and  the  real  estate  upon  which  it 
was  secured,  should  be  held  for  the  antecedent  debt  due  the  bank. 
By  the  assignment  in  bankruptcy  the  assignee  has  succeeded  to  all  the 
rights  of  the  assignor,  Emerson  ;  but  his  rights  here  are  not  superior 
to  those  of  Emerson.  He  has  come  into  a  Court  of  Equity  to  seek  its 
aid  in  obtaining  those  rights,  and  is,  therefore,  to  do  what  Emerson 
would  have  been  compelled  to  do.  In  order  to  obtain  a  decree  for  the 
redemption  of  the  mortgage,  he  must  perform  the  oral  agreement  that 
the  debt  of  $911,  due  the  bank,  should  be  paid,  as  pay  the  balance  of 
the  $3,000,  which  is  now  due.  Upton,  Assignee,  v.  National  Bank  of 
South  Reading,  120  Mass.  153. 

2125.  A.  executed  a  mortgage  of  real  estate,  with  a  power  of  sale, 
to  B.,  and  subsequently  conveyed  the  equitj^  of  redemption  to  C.     The 
mortgage  provided  that  after  the  expiration  of  sixty  days  from  the 
breach  of  any  of  the  conditions  named  therein,  the  mortgagee,  or  those 
claiming  under  him,  might  sell  the  premises  at  public  auction,  "  with- 
out further  notice  or  demand,  except  giving  notice  "  by  advertisement 
for  three  successive  weeks  in  a  newspaper.     Upon  breach  of  condition 
for  non-payment  of  interest,  all  the  notices  by  advertisement  were  duly 
given,  but  did  not  state  for  what  breach   of  condition  the  sale  was 
made,  and   the   sale   took   place   as   advertised.     Before  the  sale,  B, 
caused  to  be  sent  to  A.,  by  mail,  a  copy  of  the  paper  containing  the 
advertisement,  and  A.  knew  that  the  interest  on  the  mortgage  was  in 
arrears,  was  informed  that  it  must  be  paid,  and  asked  where  C.  was. 
No  formal  demand  was  made  upon  A.     It  appeared  that  A.  knew  from 
some  source  that  there  was  to  be  a  sale  of  the  property,  or  some  in- 
terest thei-ein,  and,  without  making   proper  inquiry,  carelessly,  but 
honestly,  assumed  and  believed  that  it  was  not  to  be  a  sale  under  the 
power  contained  in  the  mortgage  made  by  him.     A.  made  no  effort  to 
ascertain  the  facts,  and  did  not  attend  the  sale,  at  which  the  property 
was  sold  for  less  than  its  value.     After  the  sale,  A.  offered  to  redeem 
the  mortgage,  and  demanded  an  assignment  thereof;  was  refused,  and 
brought   a   bill   in   equity  against  B.  and  the  pin-chaser,  to  redeem. 
Held,  that  the  notices  were  not  required  to  state  for  what  breach  of 
condition  the  sale  was  made ;  that  mere  inadequacj7  of  price  was  not 
sufficient  to  invalidate  the  sale  ;  and  that  A.  could  not  maintain  his 
bill.     King  v.  Bronson,  122  Mass.  122. 

2126.  A   mortgagor   of  personal  property  has  no  such  interest 
therein  as  can  be  levied  upon  and  sold,  and  no  lien  can  be  obtained  by 
the  process  of  such  levy.     Gordon  v.  Hardin,  33  Iowa,  550,  and  Van. 


OF  STANDARD   DECISIONS.  293 

Slycke  v.  Mills,  34  Iowa,  375,  followed  in  McConnell  v.  Denham,  72 
Iowa,  494. 

2127.  A  tender  of  the  amount  due  upon  a  mortgage  after  condi- 
tion broken  does  not  discharge  the  mortgage.     A  mortgagor  cannot 
maintain  a  writ  of  entry  against  a  mortgagee  in  possession.     Rowell 
v.  Mitchell,  68  Me.  21. 

2128.  A   mortgagor  of  real  estate,  or  the  owner  of  the  equity  of 
redemption,  has  to  the  day  of  sale  to  make  payment  and  release  the 
mortgaged  premises  from  the  lien  and  sale,  and  the  provisions  of  law 
require  printed  notice  of  the  time  and  place  of  sale  to  be  given  for  at 
least  thirty  days  before  any  sale  can  be  had.      Blandins,  Adm'r  v. 

Wade,  20  Kansas,  253. 

2129.  A  mortgage  is  not  invalidated  by  a  misdescription  made  by 
a  scrivener,  where  the  premises  may  be  identified  by  the  admission  of 
the  parties  themselves,  by  reference  thereto  in  other  deeds,  and  by  an 
actual  location  thereof  by  the  parties.       Boon  v.  Pierpont,  28  N.  J. 
Eq.  6. 

2130.  The  deed  of  a  married  woman  is  not  complete,  so  as  to  con- 
vey   title  to  land,  without  the  certificate  of  privj*  acknowledgment 
prescribed  by  the  statute;  and  its  absence  cannot  be  supplied  by  parol 
•evidence.     Looney  v.  Adamson,  48  Texas,  619. 

2131.  A  mortgage  containing  a  clause  that  the  mortgagor  shall 
Lave  possession,  without  paying  rent,  of  the  mortgaged  property  un- 
til a  fixed  date,  is  not  to  be  construed  thereby  to  confer  the  right  of 
possession  thereafter  to  the  mortgagee.     Morrow  v.  Morgan,  48  Texas, 
304. 

2132.  A  mortgage,  primarily  without  any  consideration,  given  to 
secure  certain  negotiable  notes  in  the  hands  of  any  future  holder,  be- 
comes a  valid  mortgage  in  favor  of  any  innocent  third  person,  who 
may    acquire   one   of  the   notes   before   its   maturity,  and   for  value. 
JBillgery  v.  Ferguson,  30  La.  84. 

2133.  A   mortgagee  who  transfers  part  of  the  mortgage  debt  to 
another,  cannot  compete  with  his  transferee  for  the  proceeds  of  the 
mortgaged  property,  where   the  amount  is  not  sufficient  to  satisfy 
both.     Baskdull  v.  Herwig  &  Smith,  30  La.  618. 

2134.  An  assignee  of  a  mortgage,  given  to  secure  the  payment 
of  a  negotiable  note,  is   held  entitled  to  the  same  protection  that  he 
would   have  as  assignee  of  the  note  without  the  mortgage.     Dutton  v. 
Ives,  5  Mich.  515  ;  also,  Helmer  v.  Krolick,  36  Mich.  371. 

2135.  A  stipulation   in  a  mortgage  for  the  payment  of  reasonable 
attorney's  fees,  in  case  suit  is  commenced  thereon  is  valid,  and  may  be 
enforced  in  any  action  for  the  foreclosure  of  the  mortgage.     Danforth 
v.  Charles,  et  al,  1  Bennett's  Dakota  Rpts.  285. 

2136.  A  mortgage  is  binding  between  the  parties  to  it,  whether 
acknowledged  or  not.  Lemay  v.  Williams,  32  Ark.  166. 

2137.  The  registry  of  a  judgment  against  a  party  will  operate  as 
a  legal  mortgage  on  all  the  immovables  of  that  party  situate  within 
the  parish  wherein  the  judgment  is  registered,  whether  the  deed  to 
fluch    immovables   is   recorded   or   not,  and   such    mortgage   is   good 
against  everybody  that  the  judgment  debtor's  title  to  the  immovables 
is  good  against.     Logan  v.  Hebert,  30  La.  727. 

2138.  A  mortgage,  executed  by  a  tenant  in  common,  of  an  undi- 


294  MONROE'S  DIGEST 

vided  interest  in  a  specified  parcel  of  land  is  invalid  as  against  bis  co- 
tenants.     Marks  v.  Sewall,  120  Mass.  174. 

2139.  Mortgage  given  to  secure  the  payment  of  a  preexisting 
debt,  the  mortgagee  cannot  claim  protection  against  older  equities  as- 
a  bonafide  purchaser  for  a  valuable  consideration.     Alexander  v.  Gold- 
well^  55  Ala.  517. 

2140.  The  statute  grants  no  power  to  an  administrator  to  borrow 
money  upon  a  mortgage  of  the  real  estate  of  the  decedent.     Sucli  an 
act  is  foreign  to  the  policy  and  purposes  of  administration,  which  aims- 
to  close  up,  not  to  continue  an  estate.     Such  mortgage  is  without 
legal  authority,  and  void  ;  and  in  the  absence  of  fraud,  misrepresenta- 
tion, or  mistake,  the  heirs  are  not  estopped  to  plead  its  invalidity  by 
reason  of  the  benefit  resulting  to  them   by  means  of  the  mortgage. 
Black  v.   DresselVs  Heirs,  20  Kansas,  153. 

2141.  Where  a  mortgagee  of  chattels,  in  the  absence  of  an  agree- 
ment in  the  mortgage,  purchases  the  property  at  a  mortgage  sale,  and 
appropriates  it  to  his  own  use,  he  becomes  liable  for  the  actual  value 
thereof  at  the  time  of  the  sale,  without  reference  to  the  amount  bid. 

Webber  v.  Emmerson,  3  Colo.  248. 

2142.  A  mortgagor  of  real  estate  has  the  right  to  the  possession 
of  the  mortgaged  property,  and  to  sever  and  remove  timber,  woodr 
sand,  earth,  coal,  stone,  or  anything  else,  therefrom,  and  to  sell  the 
same,  unless  it  unreasonably  impairs  the  mortgage  security.     When 
it  impairs  the  mortgage  security,  the  remedy  of  the  mortgagee  is  not 
at  law,  but  in  equity ;  not  replevin  to  recover  the  property  severed 
from  the  realty,  but  generally  injunction,  to  restrain  the  commission 
of  waste  upon  the  reality.      Vanderslice  v.  Knapp,  20  Kansas,  647. 

2143.  An  unrecorded  mortgage  valid  as  against  heirs  of  mort- 
gagor.    A  scire  facias  will  lie  on  an  unrecorded  mortgage.     A.  P. 
Laughlin  v.  Ihmsen,  85  Penn.  St.  364. 

2144.  Where  the  superintendent  of  the  insurance  department  has 
accepted  from  an  insurance  company  an  assignment  of  a  mortgage  as 
a  part  of  the  deposit  to  be  made  with  him,  under  the  requirements  of 
the  insurance  law,  on  the  faith  of  a  representation  on  the  part  of  the 
mortgagor  that  there  is  no  legal  or  equitable  defence  to  the  same,  he 
can  avail  himself  of  the  doctrine  of  estoppel  prohibiting  a  debtor,  upon 
the  faith  of  whose   statements  an   assignment   of  his   obligation  has 
been  accepted,  from  disputing  such  statements.     Smyth  v.  Munroe,  84 
N.  Y.  357. 

2145.  When   assignment  of  mortgage  is   accepted  upon  faith  of 
statement  by  mortgagor  that  there  is  no  legal  or  equitable  defence,  he 
and  those  deriving  title  under  him  estopped  from  proving  agreement 
Between  him  and  mortgagee  for  release  of  portion  of  mortgaged  prem- 
ises.    Smyth  v.  K.  L.  Ins.  Co.,  84  N.  Y.  589. 

2146.  In  a  suit  in  equity  for  redeeming  unoccupied  and  uninclosed 
city  lots  from  a  mortgage,  the  mortgagee  in  constructive  possession  is 
chargeable  only  with  the  amount  actually  received  by  him  for  use  and 
occupation.     Peugh  v.  Davis,  113  U.  S.  542. 

2147.  Defendant  D.  executed  to  plaintiff  an  assignment  under  seal 
of  a   bond  and  mortgage,  which  contained  a  guaranty  of  payment  of 
the   amount  secured  in  case  of  the  failure  of  the  mortgagors  to  pay. 
In   an  action  to  foreclose  the  mortgage,  D.  was  sought  to  be  charged. 


OF   STANDARD  DECISIONS.  295 

•with  any  deficiency.  He  alleged  and  offered  to  prove  that  at  the  time 
of  the  execution  of  the  assignment,  plaintiff,  in  consideration  of  being 
permitted  to  retain  $300  out  of  the  purchase-money  and  of  the  as- 
signment to  him  of  a  policy  of  insurance  upon  a  building  on  the  prem- 
ises, agreed  by  parol  to  keep  the  building  insured  until  the  mortgage 
became  due,  that  she  did  not  do  this,  and  that  the  building  was  de- 
stroyed by  fire.  The  evidence  was  objected  to  and  excluded.  Held, 
error ;  also,  that  the  fact  that  the  breach  of  this  parol  agreement  was 
(not  in  terms  set  up  as  a  counterclaim  was  not  available  here,  as  the 
facts  were  alleged,  and  no  objection  to  the  proof  offered  was  made 
upon  the  ground  that  the  pleading  was  defective.  Van  Brunt  v.  Day, 
81  N.  Y.  2511 

2148.  To  entitle  a  mortgagor  to  maintain  an  action  to  extinguish 
the  lien  of  his  mortgage  because  of  a  tender  of  the  amount  due  and  a 
refusal  to  accept,  the  tender  must  be  kept  good.     Tuthill  v.  Morris. 
81  N.  Y.  95. 

2149.  The  rule  that  a  party  coming  into  a  court  of  equity  for  af- 
firmative relief  must  himself  do  equity,  requires,  in   such  case,  that 
the   mortgagor  pay   the  debt  secured  by  the  mortgage,  with  costs,  in 
any  foreclosure  proceedings,  and  the  interest  at  least  up  to  the  time  of 
the  tender.     Tuthill  v.  Morris,  81  N.  Y.  95. 

2150.  The  most  that  can  equitably  be  claimed  by  the  mortgagor 
is   relief  from  the  payment  of  interest  and  costs,  subsequent  to  the 
tender,  to  entitle  him  to  this  he  must  keep  the  tender  good  from  the 
time  it  was  made.     Tuthill  v.  Morris,  81  N.  Y.  95. 

2151.  Mortgage  when   held  as  security  for  the  payment  of  nego- 
tiable  paper,  to  defence  to  which  the  notes  in  their  hands  would  not 
equally  be  open.     Carpenter  v.    Longan,  16  Wall.  U.  S.  271. 

2152.  Defendant  and  one  O'D.  entered  into  a  contract  for  the  pur- 
chase by  the  former,  and  sale  by  the  latter,  of  certain  premises.     De- 
fendant agreed  to  pay  a  portion  of  the  purchase-price  by  the  assign- 
ment of  a  mortgage  which  he  covenanted  should  be  a  valid  and  sub- 
sisting first  lien ;  the  property  covered  by  it  to  be  of  the  value  of  $4,- 
000.  O'D.  conveyed  the  premises  and  defendant  assigned  the  mortgage ; 
the  assignment  contained  a  guaranty  that  the  mortgage  was  a  valid 
and  subsisting  lien,  but  contained  no  covenant  as  to  the  value  of  the 
mortgaged  premises  or  as  to  the  priority  of  the  lien.     Held,  that  the 
acceptance  of  the  assignment  was  not  a  satisfaction  or  extinguishment 
of  the  covenant  as  to  value  in  the  agreement ;  and  that  an  action  was 
maintainable  for  a  breach  thereof.     Smith  v.  Holbrook,  82  N.  Y.  562. 

2153.  In  an  action  against  an  assignor  of  a  note  and  mortgage  given 
to  secure  its  payment  upon  a  covenant  as  to  value  of  the  mortgage, 
held,   that  the  covenant  having  been  given  to  indemnify  against  loss 
on  the  mortgage,' defendant  was  entitled  to  have  the  value  of  the  note 
allowed    in  diminution  of  damages  ;  but  that  its  value  at  the  time  of 
the  trial  could  only  be  considered,  not  the  value  at  the  time  of  the  as- 
signment;  and,  as  it  was  admitted  on  the  trial  that  the  makers  of  the 
note  had  become  insolvent  and  had  been  adjudicated  bankrupts,  that  a 
charge  of  the  court  as  follows  was  proper,  to  wit :  "  that  it  was  un- 
important  as  to  whether  the  makers  were  or  were  not  solvent  at  the 
time   of  the  assignment  but  that  the  only  inquiry  on  the  question  of 
damages  was  whether  the  mortgaged  property  was  at  that  time  worth 


296  MONROE'S  DIGEST 

less,  and  liow  much  less  than  $4,000."     Smith  v.  Holbrook,  82  N.  Y. 
562. 

2154.  Where  mortgaged  property  is  sold  under  a  power,  the  ab- 
sence  of  objection  on   the  part  of  the  mortgagor  to  the  sale  as  made 
cures  any  defect  which  exists  therein,  and  gives  it  validity.     Markley, 
etal.  v.  Langley,  et  aL,  92  U.  S.  142. 

2155.  Where  the  mortgagees  are  expressly  authorized  to  sell  for 
cash  or  on  credit,  they  may  do  either,  or  combine  them  in  the  sale ;  nor 
is  a  sale  for  part  in  cash  and  part  on  credit  under  a  power  requiring  it  tc^ 
be  made  for  cash  invalid,  if  the  departure  from  the  terms  of  the  power 
is  beneficial  to  the  mortgagor.     It  is  immaterial  whether  such  arrange- 
ment for  payment  is  made  before  or  after  the  sale.     Ibid. 

2156.  To  redeem  property  which  has  been  sold  under  a  mortgage, 
as  is  alleged,  irregularly,  the  whole  mortgage-money  must  be  tendered, 
or  if  suit  be  brought,  be  paid  into  court.     Collins  v.  Biggs,  14  Wall. 
U.  S.  491. 

2157.  Mortgage  when  held  as  security  for  the  payment  of  negoti- 
able paper  is  open  as  against  bona  fide  holders  of  the  paper  for  valid, 
defence  to  which  the  notes  in  their  hands  would  not  equally  be  open. 
Carpenter  v.  Longon,  16  Wallace,  271;  also,  Kenicott  v.  The  Super- 
visors, 16  Wall.  452. 

2158.  A  mortgage  on  real  estate  is  only  personal  property,  and 
under  the  Revenue  Laws  of  Montana  (Codified  Laws  of  1871-2),  can 
only  be   assessed   in   the   county   where  found.     The  record  of  such 
mortgage  in  the  recorder's  office  of  a  county,  being  only  a  copy  of  the 
original,  is  not  taxable  personal  property.     Gallatin  County  v.  Beattie, 
3  Montana,  173;  cited  Mack  v.  Wetzlar,^  Cal.  217;  also,  4  Kent's 
Com.  174. 

2159.  Although  an  inst'rurnent  which  purports  to  mortgage  a  crop 
the  seed  of  which  has  not  yet  been  sown,  cannot  at  the  time  operate  as 
a  mortgage  of  the  crop,  yet  when  the  seed  of  the  crop  intended  to  be 
mortgaged  has  been  sown  and  the  crop  grows,  a  lien  attaches.     Butt  v. 
Ellett,  19  Wallace,  U.  S.  544. 

2160.  A  mortgage  was  executed   to  M.  and  S.,  who  were  copart- 
ners, doing  business  under  the   firm  name  of  M.  &  Co.     It  was  ex- 
pressed in  the  condition  of  the  mortgage  that  it  was  intended  among 
other  things,  "  as  a  continuing   security  and  indemnity  "  to  the  mort- 
gagees "  for  and  against  all  liabilities  they  then  had  incurred  or  might 
thereafter  incur  as  indorsers,  acceptors  or  sureties  in  any  form  "  for  J. 
B.,  one  of  the  mortgagors,  or  the  firm  of  J.  B.  &  Co.     Held,  that  the 
mortgage  included  not  merely  such  liabilities  as  were  incurred  by  the 
mortgagees  jointly  as  copartners  ;  but  such  as  were  incurred  by  either 
of  them,  separately  and  individually.     Nat.  Bank  v.  Bigler,  83  N.  Y. 
51. 

2161.  After  the  delivery  of  the  mortgage  M.  died  ;  by  the  articles 
of  copartnership  it  was  stipulated  that  in  case  of  the  death  of  one  of 
the  partners,  the  survivor  should  continue  to  carry  on  the  business  for 
the  benefit  of  both  parties,  for  a  time  specified  after  such  death.     Held, 
that  the  authority  thus  conferred,  if  valid  and  operative  (as  to  which 
qnoere),  did  not  authorize  the  survivor  to  bind  the  estate  of  the  de- 
ceased by  new  accommodation   indorsements,  nor  did  it  permit  and 
make  valid  an  indorsement  of  the  firm  executed  by  the  survivor  as  a 


OF  STANDARD   DECISIONS.  297 

renewal  of  an  indorsement  made  in  the  lifetime  of  the  deceased  and 
•with  his  assent.     Nat.  Bank  v.  Bigler,  83  N.  Y.  51. 

2162.  At  the  time  of  the  death  of  M.  plaintiff  held  the  paper  of 
•J.  13.  &  Co.,  indorsed  by   M.  &  Co.  to  a  large    amount.     Upon   the 
request  of  B.   &   Co.  and  with  the  concurrence  of    S.  and  the  assent 
of  the  executors  of  M.,  an  arrangement  was  made  to  the  effect  that 
the  mortgage  should   be  assigned  to  plaintiff,  that  the  paper  held  by 
the  latter  should  be  protested  at  maturity,  and  as  each  note  matured, 
J.  B.  &   Co.  should  make  a  new  note  for  the  same  amount,  to  be  in- 
dorsed by  S.  and  discounted  by  plaintiff',  the  proceeds  to  be  credited  to 
S.,  and  therewith  he  was  then  to  take  up  the  old  note  and  pledge  it  to 
plaintiff  as  security  for  the  new  one  ;  it  being  the  intention  of  the 
parties,  as  the  court  found,  that  the  paper  so  held  at  the  death  of  M. 
•was  not  to  be  paid  or  extinguished,  but  kept  alive  against  all  the 
parties.     This  arrangement  was   carried  out.     Held,  that  it  did  not 
operate  as  a  payment  of  the  notes  secured  by  the  mortgage ;  that  no 
presumption  of  payment  arose  from  the  taking  of  the  renewal  notes; 
also  that  the  assignment  transferred  to  plaintiff  the  right  to  enforce 
the  mortgage  security.     Nat.  Bank  v.  Bigler,  83  N.  Y.  51. 

2163.  It  seems,  that  plaintiff,  had  there  been  no  agreement,  would 
have  been  equitably  entitled  to  an  assignment  of  the  mortgage.     Nat. 
Bank  v.  Bigler,  83  N.  Y.  51. 

2164.  Also,  held,  that  the  mortgage  was  not  one  of  indemnity 
merely,  but  was  a  security  as  well,  against  all  liabilities,  and  that, 
therefore,  it  was  not  essential  to  a  recovery  to  show  that  damages  had 
been  sustained ;  that  the  right  of  the  mortgagees  to  resort  to  the  se- 
curity arose  when  their  liability,  as  indorsers,  was  fixed.     Nat.  Bank 
v.  Bi<jler,  83  N.  Y.  51. 

2165.  The  distinction  between  a  covenant  to  secure  against  liabil- 
ity and  one  to  indemnify  against  damages  by  reason  of  non-perform- 
rance  of  some  specified  act,  pointed  out.     Nat.  Bank  v.  Bigler.  83  N. 
Y.  51. 

2166.  Some  drafts  drawn  by  J.  B.  &  Co.  and  indorsed  by  M.  & 
Co.,  before  the  death  of  M.,  were  taken  up  with  the  proceeds  of  new 
drafts,  indorsed  by  S.,  and  discounted  by  plaintiff,  who  received  the 
old  drafts  in  pledge  under  the  agreement.     Held,  that  the  transactions 
were  renewals,  not  payments,  and  that  at  least  the  liability  of  S.  on 
the  new  paper  was  sufficient  to  make  the  mortgage  available  to  the 
plaintiff  as  security  therefor.     Nat.  Bank  v.  Bigler,  83  N.  Y.  51. 

2167.  Defendant  M.  A.  B.  who  owned  an  undivided  interest  in  the 
mortgaged  premises  joined  in  the   mortgage  as  securit}'  for  J.  B.  & 
Co. ;    it  was  claimed  on  her  behalf  that  the  arrangement  with  the 
plaintiff  for  renewals  operated  as  an  extension  of  the  time  of  pay- 
ment ;  that  after  the  death  of  M.  no  effectual  consent  to  an  extension, 
binding  the  firm  of  M.  &  Co.,  could  be  given,  and  that  thereby  the 
liability  of    M.   &   Co.  was  released.      Held,  untenable,  as  no  valid 
agreement  extending  the  time  of  payment  of  the  original  notes  was 
shown.     Nat.  Bank  v.  Bigler,  83  N.  Y.  51. 

2168.  An  action  may  be  maintained  on  a  warranty  without  a  re- 
turn of  the  property  by  the  purchaser.     Storrs  v.  Emerson,  72  Iowa, 
390. 


298  MONROE'S  DIGEST 


NEGLIGENCE. 

2169.  If  one  of  two  innocent  persons  must  suffer  a  loss,  he  who> 
contributed  to  it,  or  enabled  another  to  commit  a  wrong,  must  bear  it. 
If  a  party  signs  and  acknowledges  a  deed,  supposing  it  to  be  a  lease, 
without  reading  the  same,  and  thereby  enables  his  grantee  to  sell  the 
property  to  an  innocent  purchaser  for  a  valuable  consideration,  the  title 
will  pass  to  such  purchaser,  and  the  grantor  must  bear  the  loss.     Gav- 
agan  v.  Bryant,  et  al.,  83  111.  376. 

2170.  The  general  rule,  where  parties  are  guilty  of  negligence,  that 
of  the  plaintiff  must  be  slight  when  compared  with  that  of  the  defend- 
ant, and  his  must  be  gross,  to  authorize  a  recovery  against  him.     A 
mere  preponderance  of  negligence  on  the  part  of  the  defendant  is  not 
sufficient.     Schmidt,  Adm'x  v.  Chicago  &  Northwestern  By.  Co.,  et  al.^ 
83  111.  405. 

2171.  Before  any  recovery  can  be  had  by  a  party  receiving  an  in- 
jury by  falling  into  an  excavation  in  a  sidewalk  not  properly  protected,, 
he  must  show  that  he  had  observed  due  care  for  his  personal  safety r 
and    the    burden    of  proving  such   fact  is  upon   him.     Kepperlij   v. 
Ramsden,  83  111.  354. 

2172.  As  between  two  innocent  persons,  where  one  of  two  inno- 
cent parties  is  to  suffer  loss,  it  must  fall  upon  the  first  one  in  fault. 
If,  therefore,  the  equitable  owner  of  a  note  loses  the  same,  and  it  is- 
found  and  put  upon  the  market,  and  conies  into  the  hands  of  an  inno- 
cent and  bona  fide  purchaser,  the  loss  must  fall  upon  the  loser  of  the 
note  for  his  negligence  in  not  taking  proper  care  of  the  same.     Gavin 
v.  Wiswell,  83  III.  215. 

2173.  An  assignee  of  certificates  of  shares  of  stock,  who  leaves- 
the  certificates,  with  the  assignments  recorded,  in  the  possession  of  the 
assignor,  is  not  thereby  guilty  of  negligence,  so  as  to  be  estopped  to- 
set  up  his  title  against  a  person  who  claims  title  to  the  certificates 
through  an  alteration  of  the  assignments  by  the  fraud  and  forgery  of 
the  assignor.     Eaton  v.  Telegraph  Co.,  68  Me.  63. 

2174.  One  accepting  a  deed  of  conveyance  of  land  is  bound  to  ex- 
ercise ordinary  prudence  in  examining  the  instrument,  and  cannot,  in 
a  suit  against  the  grantor  for  alleged  defects  in  the  deed,  excuse  him- 
self for  this  neglect  upon  the  ground  of  his  confidence  in  the  grantor- 
Jaeger  v.  Whitsett,  3  Colo.  105. 

2175.  The  employment  of  a  common  carrier  is  a  public  employ- 
ment, and  while  he  may,  by  special  agreement,  excuse  himself  for  ac- 
cidental losses,  he  is  reponsible  for  all  damages  occasioned  by  neg- 
ligence or  misfeasance,  either  of  himself  or   servants,  and  cannot  di- 
vest himself  of  this  liability,   either   by    special   contract   or   notice- 
Merchants'  D.  &  T.  Co.  v.  Cornforth,  3*Colo.  280. 

2176.  An  action  may  be  brought  by  a  receiver  of  a  national  bank 
against  its  directors  to  recover  damages  sustained  by  it,  through  gross 
negligence  and  inattention  to  their  duties,  at  least  when  no  proceeding 
is   pending    under  the  National   Banking  Act  for  the  forfeiture  of  its- 
charter.     Brinkerhoff  v.  Bostwick,  88  N.  Y.  52. 

2177.  In  case  the  receiver  is  one  of  the  directors  chargeable  with 
neglect  of  duty,  such  action  may  be  maintained  by  the  stockholders^. 


OP  STANDARD  DECISIONS.  299 

and  when  the  stockholders  are  numerous  the  action  may  be  brought  by 
one  or  more  in  behalf  of  all.     Brinkerhoff  v.  Bostwick,  88  N.  Y.  52. 

2178.  It  is  not  necessary  to  allege  Jn  the  complaint  in  such  an 
action  a  direction  from  the  comptroller,  or  a  demand  upon  him  and  a 
refusal  to  direct  the  receiver  to  bring  the  action,  or  a  refusal  of  the 
receiver   to  sue.     Brinkerhoff  v.  Bostwick,  88  N.  Y.  52.      Such  an 
action  may  be  brought  in  a  State  court.     Brinkerhoff  v.  Bostwick,  88 
N.  Y.  52. 

2179.  The  bank  itself  and  the  receiver,  as  such,  are  proper  and 
necessary  parties  defendant  to  such  an  action.     Brinkerhoff  v.  Bost- 
wick, 88  N.  Y.  52. 

2180.  It  seems  that  the  provision    of  said   act    (U.    S.  R.  S.,  § 
5239),  that  if  the  directors  of  a  bank  organized  under  it  shall  know- 
ingly violate  or  permit  the  violation  of  the  provisions  of  the  act,  the 
franchises  of  the  bank  shall  be  forfeited,  such  violation,  however,  to  be 
first  determined  by  a  United  States  Court  in  an  action  brought  by  the 
comptroller  of  the  currency,  and  in  case  of  such  violation  making  the 
directors  participating  therein  liable  for  damages,  applies  only  to  viola- 
tions of  the  act  itself,  by  the  assumption  of  powers  in  excess  of  the 
franchise  granted,  or  by  a  disregard  of  the  prohibitions  of  the 
Brinkerhoff  v.  Bostwick,  88  N.  Y.  52. 


NOTARY  PUBLIC. 

2181.  There  is  no  statute  conferring  on  notaries  public  a  general 
power  to  administer  oaths  and  take  affidavits.     Such  a  power  is  not 
one  of  the  incidents  of  the  office  of  notary  public,  under  the  law  mer- 
chant, and  as  it  is  not,  by  the  statutes  of  Texas,  conferred  on  notaries 
of  other  States,  an  instrument  purporting  to  be  an  affidavit  executed 
before  a  notary  public  of  another  State,  by  an  appellant,  stating  an  in- 
ability to  give  bond,  with  security,  for  costs,  is  not  an  affidavit,  within 
the  meaning  of  the  statute.     Jenks  v.  Jenks,  47  Texas,  220. 

2182.  The  sureties  on  the  official   bond  of  a  notary  public  are 
liable  for   any  loss   or  damage   caused   by   his   affixing   his   notarial 
paraph  to  any  mortgage  note  which  he  knew  to  be  forged.     And  any 
one  injured  by  his  act  has  a  right  of  action  on  the  bond  against  his 
sureties.     Rochereau,  et  al.  v.  William  McG.  Jones,  29  La.  82. 


NON-RESIDENT. 

2183.  A  foreign  creditor  rightfully  in  a  court  of  this  State,  pursu- 
ing a  remedy  given  by  the  statutes  of  the  State,  may  enforce  that 
remedy  to  the  same  extent,  in  the  same  manner  and  with  the  same 
priority  of  lien  as  a  citizen.  Hibernia  Nat.  Bank  v.  Lacombe,  84  N, 
Y.  367. 


300  MONROE'S  DIGEST 


NOTICE. 

2184.  An  association  (not  incorporated)  desired  to  raise  money, 
individual  members  made  notes  in  large  sums  for  the  purpose  and 
placed  them  in  the  hands  of  Hostetter,  one  of  the  association.     The 
.amounts  being  too  large  to  negotiate,  he  gave  his  individual  notes  in 
smaller  sums  and  retained  the  large  notes  as  security  for  himself. 
Evidence  tending  to  prove  the  ratification  of  his  acts  by  the  other 
members  of  the  association  was  admissible  in  a  suit  upon  the  original 
notes  by  a  holder.     Held,  that  Hostetter's  knowledge  of  the  circum- 
stances, etc.,  of  the   notes  was  to  be  imputed  to  the  firm.     McClurken 
v.  Byers,  74  Penn.  St.  Repts.  405. 

2185.  Notice  to  the  cashier  of  a  bank  lending  on  trust  stocks,  that 
the  stock  pledged  is  held  in  trust,  is  notice  to  the  bank.     Gaston  v. 
Am.  Exch.  Bank,  29  N.  J.  98. 

2186.  To  release  a  surety,  under  the  statute,  satisfactory  proof 
must  be  made,  or  a  notice  in  writing,  by  him  to  the  holder  of  the  obli- 
gation, to  from  its  date,  shall  be  considered  overdue  and  dishonored, 
•does  not  affect  the  rights  of  the  original  parties  to  the  note,  but  only 
those  of  third  parties,  as  indorsers,  guarantors  or  purchasers.     Sey- 
mour v.  Continental  Life  Ins.  Co.,  44  Conn.  300. 

2187.  Where  a  weekly  publication  of  a  notice  is  required,  it  is  not 
necessary  to  show  publication  on  the  same  day  of  each  week  ;  it  is  suffi- 
cient if  made  on  any  day  of  each  week  for  the  requisite  number  of 
weeks.     Wood  v.  Knapp,  100  N.  Y.  109. 


OF   STANDARD   DECISIONS.  301 


OFFER. 

2188.  Defendant  not  liable  thereon  unless  plaintiff's,  within  reason- 
able time,  give  notice  that  they  had  accepted  the  offer,  or  had  acted  on 
it.  Glaftin  &  Go.  v.  Bryant,  58  Ga.  414. 


OVERDUE  COUPONS. 

2189.  When  a  railroad  corporation,  through   its  president,  bor- 
rowed money  of  its  agent,  and  pledged  with  him  mortgage  bonds  as- 
security,  although  the  agent  could,  as   between  himself  and  the  cor- 
poration, only  hold  the  bonds  as  security  for  the  loan,  on  payment  of 
which  they  should  be  surrendered  to  the  company,  yet  a  person  in  good 
faith  purchasing  the  bonds  from  the  agent  could  hold  them  for  at  least 
the  amount  he  paid  for  them.     The  amount  paid  for  the  bonds  may  be 
taken  into  consideration  in  determining  the  question  of  good  faith. 

2190.  And  where  the  purchaser  from  an  agent  afterwards  sells  the 
bonds  to  a  bona  fide  purchaser,  the  fact  that  the  bonds  were  then  over- 
due will  not  preclude  the  last  purchaser  from  holding  on  to  the  bonds 
as  indemnity  for  the  amount  he  paid,  although  in  excess  of  the  sum 
originall}"  borrowed  by  the  company  upon  them. 

2191.  An  honest  purchaser  from   the  agent  of  the  company  can 
give  a  good  title  to  another,  although  the  bonds  become  due  before  the 
last  transfer.     The  question  of  a  bona  fide  purchaser  considered,  as 
also  effect  of  the  clause  making  the  principal  due,  by  an  omission  to 
pay  an  instalment  of  interest.     Under  the  circumstances  of  this  case 
the  last  party  was  held  entitled,  in  an  action  brought  against  him  by 
the  company  for  the  recovery  of  the  bonds,  to  detain  them  as  indem- 
nity for  the  amount  he  had  paid  on  their  purchase.     Todd  v.  Shelbourne, 
8  Hun,  510.     Decision  on  all  the  above  questions  in  the  case  of  Grand 
Rapids  and  Indiana  Railroad  Co.  v.  Joshua  C.  Sanders,  54  Howard's, 
N.  Y.  214. 


OWELTY. 

2192.  When  owelty  is  required  to  equalize  partition  between  two 
tenants  in  common,  tlie  estate  of  one  being  mortgaged,  it  should,  if  to 
be  paid  by  the  unincumbered  owner,  be  paid  to  the  mortgagee  of  the 
other  and  credited  on  the  mortgage  note.  Green  v.  Arnold.  11  R.  I, 
364. 


302  MONROE'S  DIGEST 


PAROL  EVIDENCE. 

2193.     Parol  evidence  is  not  admissible  to  vary  the  terms  of  a 
written  contract.     Serviss  v.  StockstilL,  30  Ohio,  418. 


PARTNERSHIP. 

2194.  Partner  surviving  of  a  firm  may  assign  a  promissory  note 
payable  to  the  late  firm,  by  indorsement,  so  as  to  vest  the  legal  title  in 
the  assignee,  as  effectually  as  if  the  note  had  been  made  payable  to 
him.     Johnson,  et  al.  v.  Berlizheimer,  84  111.  54. 

2195.  A  note  by  a  partnership  to  one  of  its  members  for  money 
borrowed,  may  be  enforced  at  law  in  the  name  of  an  indorsee  not  a 
member  of  the  partnership,  although  the  payee  be  a  party  defendant 
and  the  real  owner  of  the  note, — no  reason  appearing  why  a  judgment 
at  law  would  not  do  legal  justice  between  the  real  parties.     Walker  v. 

Wait,  et  al,  50  Vt.  668. 

2196.  One  member  of  a  partnership  cannot  bind  his  copartner  by 
•a  promissory  note  for  a  partnership  demand,  made  after  the  dissolution 
of  the  partnership.     Curry  v.  White ,  51  Cal.  530. 

2197.  In  an  action  against  A.  for  goods  sold  and  delivered,  to 
'which  the  defence  was  payment  by  the  negotiable  promissory  note  of 
B.  and  C.,  it  appeared  that  the  plaintiff  took  the  partnership  note  of 
B.  and  C.  in  payment.     Held,  that  the  declarations  of  one  of  the  part- 
ners, to  the  effect  that  A.  was  a  member  of  the  firm,  were  admissible 
in  evidence  to  show  that  the  plaintiff'  took  the  note  under  a  misappre- 
hension, and  that,  if  this  were  so,  the  action  could  be  maintained. 
Tozier  v.  Crafts,  123  Mass.  480. 

2198.  The   holder  of  a  claim   against  a  partnership  has  a  legal 
right  to  have  his  claim  established  against  the  estate  of  the  deceased 
partner,  and,  in  the  ordinary  course  of  administration,  his  claim  will 
be  paid  pari  passu  with  other  claims  of  the  same  class,  without  regard 
to  the  distinction  between  partnership  and  individual  claims.     Higgins 
v.  Rector,  47  Texas,  361. 

2199.  While  it  is  true  that,  after  the  dissolution  of  a  partnership, 
the  members  thereof  cannot  create  obligations  which  will  bind  the 
firm,  or  change  the  character  or  form  of  those  already  existing,  still  it 
devolves  on  them  to  give  actual  notice  to  those  with  whom  the  firm 
has  had  dealings  ;  and  any  act  done  within  the  scope  of  the  partner- 
ship, by  one  of  the  members,  after  its  dissolution,  and  before  actual 
notice  of  dissolution  to  those  with  whom  said  firm  had  been  dealing,  is 
binding  upon  all  the  members  of  such  firm.     Partnership  notes  import 
at  law — although  it  is  otherwise  in  equity — a  joint,  and  not  a  joint  and 
several  obligation.     Dams  v.  Willis,  47  Texas,  154. 

2200.  As  by  operation  of  law  a  partnership  is  dissolved  by  the 
death  of  any  of  its  members,  any  agreement  taking  the  partnership 
out  of  this  rule  must  be  shown  distinctly  and  by  evidence  satisfactory. 
Alexander  v.  Lewis,  47  Texas,  481. 

2201.  The   partnership   articles   contained  a  provision  that  the 


OF   STANDARD   DECISIONS.  303 

special  partner  should  bear  a  proportionate  share  of  the  losses.  Held, 
that  this  was  not  violative  of  said  act ;  that  there  is  not  in  the  Limited 
Partnership  Act  (1  R.  S.  763,  §  1,  ct.  ap.)  anything  prohibiting  the 
special  partner  from  extending  his  liability  by  agreement  with  his 
partners,  or  assuming  risks  beyond  the  loss  of  capital.  George  v. 
Grant,  97  N.  Y.  262. 

2202.  An  incoming  partner  can  only  be  made  liable  by  agreement 
for  the  prior  debts  of  the  firm,  whether  he  succeeds  an  outgoing  part- 
ner by  purchase,  or  whether,  upon  the  death  of  one  partner  he  joins 
with  the  survivors  in  carrying  on  the  business.     Serviss  v.  McDonnell, 
107  N.  Y.  260. 

2203.  An  undertaking  on   his  part,  alone  or  in  connection  with 
others,  that  the  new  firm  will  pay  the  debts  of  the  old  firm,  can  be  en- 
forced only  by  the  old  firm ;  its  creditors  may  not  sue  for  a  breach  of 
it.     /  bid. 

2204.  Whereon  partner,  R.  M.  affixed  his  name  and  seal  to  an  in- 
strument whose  testatum  set  forth  that  "  R.  M.  &  Sons,  by  R.  M.,  one 
of  the  firm,  had  thereto  set  their  hands  and  seals  "  the  instrument  may 
be  regarded  as  the  deed  of  all  the  partners  on  proof  that  prior  to  the 
execution  the  others  had  authorized  R.  M.  to  execute  the  instrument, 
and  after  execution,  with  full  knowledge  acquiesced  in  what  he  had 
done.     Gibson  v.  Warden,  14  Wall.  U.  S.  244. 

2205.  A  member  of  a  partnership,  residing  in  one  state,  not  served 
with  process  and  not  appearing,  is  not  personally  bound  by  a  judgment 
recovered  in  another  State  against  all  the  partners  after  a  dissolution 
of  the  firm,  although  the  other  members  were  served,  or  did  appear  and 
caused  an  appearance  to  be  entered  for  all,  and  although  the  law  of  the 
State  where  the  suit  was  brought  authorized  such  judgment.     Hall,  et 
al.  v.  Lanning,  et  al,  (1  Otto.)  U.  S.  S.  C.  91,  160. 

2206.  After  the  dissolution  of  a  partnership,  one  partner  has  no 
implied  authority  to  cause  the  appearance  of  another  partner  to  be  en- 
tered to  a  suit  brought  against  the  firm.      Quoere,  whether  such  im- 
plied authority  exists  during  the  continuance  of  the  partnership.  Ibid. 

2207  Where  a  member  of  a  firm,  who  had  charge  of  its  financial 
business,  took  up  firm  notes  by  giving  in  exchange  therefor  notes  of  a 
third  person,  indorsed  by  him  in  the  firm  name,  which  indorsement  was 
without  the  knowledge  of  his  partners.  Held,  that  the  indorsement 
was  within  the  authority  of  the  partner  making  it  ;  and  that  the  firm 
was  liable  thereon.  Steuben  Co.  Bank  v.  Alberger,  101  N.  Y.  202. 

2208.  It  is  lawful  for  an  insolvent  member  of  a  firm  to  devote  his 
individual  property  to  the   payment  of  firm  debts  or  any  debt  owing 
by  him  to  his  partners  to  the  exclusion  of  his  individual  creditors,  and 
no  inference  of  fraud  can  legally  be  derived  from  such  disposition. 
Crook  v.  Rindsko/,  105  N.  Y.  476. 

2209.  Where  three  persons  form  a  partnership,  and  agree  to  bear 
the  losses  and  share  the  profits  of  the  partnership  venture  in  propor- 
tion to  their  contribution  to  its  capital,  and  two  of  the  partners  fur- 
nish all  the  money  and  do  all  the  work,  they  are  entitled  to  be  repaid 
their  advances  out  of  its  assets  before  payment  of  the  individual  credi- 
tors of  the  partner  who  paid  nothing  and  did  nothing  to  promote  the 
partnership  business.     Hobbs  v.  McLean,  117  U.  S.  567. 

2210.  M.,  plaintiff's  testator,  and  defendant  were  formerly  partners 


304  MONROE'S  DIGEST 

carrying  on  a  hotel,  the  leases  for  which  expired  at  the  time  fixed  for 
the  termination  of  the  partnership.  Prior  to  that  time  defendant,  without 
the  assent  or  knowledge  of  his  partner,  procured  new  leases  in  his  own 
name  for  terms  beginning  at  the  termination  of  the  partnership,  which, 
upon  discover}7  of  the  fact  by  M.,  he  claimed  to  hold  exclusively  for  hi* 
own  benefit.  This  action  was  brought  to  have  M.'s  interest  in  the 
leases  declared  and  adjudged.  It  appeared  that  during  the  pendency 
of  the  action  M.  brought  another  action  for  a  dissolution  of  the  part- 
nership and  sale  of  its  effects.  The  judgment  therein  directed,  among 
other  things,  a  sale  of  the  furniture  and  fixtures  belonging  to  the  firmr 
leaving  the  question  as  to  the  disposition  of  the  leases  to  be  determined 
in  this  action.  Sale  was  made  accordingly,  the  property  bid  off  by 
defendant,  and  M.  received  his  proportion  of  the  purchase  price.  Upon 
the  final  trial  herein,  which  did  not  occur  until  after  the  expiration  of 
the  new  leases  of  which  defendant  had  had  the  benefit,  plaintiff  was- 
allowed  to  prove,  as  a  basis  for  computing  damages,  what  the  furni- 
ture, good  will  and  leases  if  put  up  for  sale  together  would  have 
brought,  the  partners  each  having  a  right  to  bid  at  the  sale.  Held,  no 
error.  Mitchell  v.  Read,  84  N.  Y.  556. 

2211.  The  right  of  a  partner  to  sign  the  firm-name  to  a  contract 
of  indemnity  in  favor  of  third  persons  must  be  strictly  proved  ;  but  it 
need  not  necessarily  be  proved  by  a  written  authority  to  him.    Moran, 
et  al.  v.  Prather,  23  Wall.  TJ.  S.  492. 

2212.  A  new  partner,  in  a  firm  not  liable  for  the  debts  of  the  old 
firm  of  the  same  name,  is  not  responsible  for  money  borrowed,  without 
his  knowledge  or  consent,  by  the  members  of  the  old  firm,  and  used 
to  pay  a  debt  of  the  old  firm,  the  lender  being  aware  that  the  money 
was  to  be  so  applied.     Elkin  v.  Green,  13  Bush,  Ky.  612. 

2213.  Two  partners  constituting  an  old  firm  could  not  bind  the 
third  partner  who,  with  them,  constituted  a  new  firm  of  the  same 
name,  without  his  knowledge  or  consent,  by  borrowing  money  and  using 
it  to  pay  debts  of  the  old  firm,  or  by  making  and  delivering  to  them- 
selves the  notes  of  the  new  firm,  when  the  new  was  not  indebted  to  the 
old  firm.     Elkin  v.  Green,  13  Bush,  Ky.  612. 

2214.  The  power  of  one  partner  to  bind  his  copartners  rests  alone 
upon  the  usages  of  merchants,  and  does  not  amount  to  a  rule  of  law  in 
any  other  than  commercial  partnerships.     In  non-commercial  partner- 
ships, one  who  seeks  to  hold  the  firm  bound  upon  a  contract  made  by 
a  single  member,  must  be  able  to  show  either  express  authority,  or 
that  such  is  the  custom  and  usage  of  the  particular  branch  of  business 
in  which  the  firm  is  engaged,  or  such  facts  as  will  warrant  the  con- 
clusion that  the  partner  had  been  invested  by  his  copartners  with  the 
requisite  authority. 

2215.  The  extent  of  the  power  of  a  partner  to  bind  his  firm  is  a 
question  of  law  in  commercial,  and  a  question  of  fact  in  non-commercial 
partnerships.     The  business  of  a  commercial  partnership  being  ascer- 
tained, and  the  nature  of  the  contract  made  by  a  single  member,  and 
the  circumstances  attending  it  being  known,  the  court  may  generally 
determine,  as  matter  of  law,  whether  the  contract  was  within  the  scope 
of  the  implied  powers  of  a  partner.     Not  so,  however,  in  reference  to  a 
contract  made  by  a  member  of  a  non-commercial  partnership. 

2216.  A  partner  in  a  non-commercial  partnership  does  not  gen- 


OF  STANDARD   DECISIONS.  305 

erally  possess  power  to  bind  the  firm,  and  consequently  the  extent  of 
his  power  is  not  fixed  by  the  rules  of  law,  but  each  case  is  left  to  be 
decided  upon  its  particular  facts ;  and  in  all  such  cases,  in  order  to 
make  out  the  liability  of  the  firm,  it  ought  to  be  made  out  affirma- 
tively by  the  plaintiff  that  the  partner  had  power  to  make  the  contract 
in  question. 

2217.  A  partnership  engaged  in  the  business  of  mining,  etc.,  is  a 
non-commercial  partnership.     A  partner  has  no  implied  power  to  pur- 
chase land  in  the  name  of  the  firm  in  a  partnership  formed  for  the  pur- 
pose of  mining,  etc.     Dickinson  v.  Valpy,  10  B.  &  C.  125  ;  Levy  v, 
Pyne  &  Richards,  41   E.  C.  &  L.  249 ;  Smith  v.  Sloan,  37  Wis.  289. 
Sustained   by  the   court   in  Judge,  Etc.  v.  Braswell  &  Co.,  13  Bush, 
Ky.  67. 

2218.  Where  one  partner,  who  is  in  sound  health,  is  made  sole 
agent  of  the  partnership  by  another,  who  is  not,  and  who  relies  on  him 
wholly  for  true  accounts,  and  the  party  thus  made  agent  manages  the 
business  at  a  distance  from  the  other,  communicating  to  him  no  infor- 
mation, the  relation  of  partners,  whatever  it  may  be  in  general,  be- 
comes fiduciary,  and  the  law  governing  such  relations  applies.  Brooks 
v.  Martin,  2  Wall.  U.  S.  70. 

2219.  On  the  trial  of  an  action  against  B.,  upon  an  issue  as  to 
whether  one  W.  and  B.  were  partners,  there  was  evidence  that  W.  and 
B.  were  together,  and  had  certain  stock  together ;  that  B.  carried  a 
note  to  bank  to  be  discounted,  with  a  written  request  from  W.  that  it 
should  be  done  ;  that  B.  said  that  the  money  was  for  himself  and  W. ; 
that  they  were  buying  stock  together,  and  that  the  money  was  to  be 
used  in  buying  stock ;  that  B.  afterwards  referred  to  the  debt  he  and 
W.  owed  the  bank,  etc.     Held,  that  the  jury  were  warranted  in  finding 
that  a  partnership  existed  between  W.  and  B.     Dobson  v.  Chambers, 
78  N.  C.  334. 

2220.  Where  a  member  of  a  firm  of  real  estate  brokers  receives 
money  with  which  to  purchase  land  for  the  person  advancing  the  same, 
and  passes  the  same  over  to  a  partner,  who  deposits  the  same  to  the 
credit  of  the  firm,  and  the  proof  fails  to  show  that  it  was  invested  as 
agreed,  the  whole  firm   will  be  liable  in  assumpsit  to  the  party  so 
advancing,  for  the  amount,  with  six  per  cent,  interest.     Kerr,  et  al.  v. 
Sharp,  83  III.  199. 

2221.  Agreement  between  A.  and  B.,  by  which  A.  agreed  to  build 
five  houses  for  B.  at  actual  cost,  to  be  completed,  etc.,  and  the  houses 
and  the  lots  whereon  they  were  built  to  be  sold,  and  the  proceeds  of 
the  sale,  after  deducting  the  cost  of  the  houses  and  the  value  of  the 
land,  rated  at  five  cents  a  foot,  and  other  expenses,  to  be  divided  be- 
tween A.  and  B.     Held,  that  if  this  agreement  could  be  construed  as  a 
partnership  at  all,  it  was  one  for  disposing  of  the  houses  and  land,  not 
for  building  them.      Bisbee  v.  Taft,  11  R.  I.  307. 

2222.  Where  one  member  of  a  firm,  at  its  dissolution,  sold  all  his 
interest  in  the  property  and  accounts  of  the  firm  to  his  partner,  who 
gave  his  note  therefor,  the  defendant  in  suit  upon  the  note  by  the 
payee,  cannot  set  off  against  such  note  an  account  due  from  the  plain- 
tiff to  the  firm  at  its  dissolution.      Wiggin  v.  Goodwin,  63  Me.  389  ; 
also,  Lesure  v.  Norris,  11  Gush.  328. 

2223.  Where  two  persons  composing  a  partnership  make  and  sign, 

20 


306  MONROE'S  DIGEST 

in  their  partnership  name,  a  false  return  to  the  assessor  of  internal 
revenue,  they  may  be  jointly  indicted  therefor.  United  States  v.  Mc- 
Oennis,  1  Abbott,  120. 

2224.  Even,  if  in  fact  there  be  no  partnership,  .one  is  liable  as  a 
partner,  if  he  represents  to  another  that  he  is  a  partner,  and  thus  ob- 
tains goods  from  him  for  the  partnership.     Ibid. 

2225.  Partners  have  no  implied  authority  to  confess  judgment  for 
each  other.     An  infant  cannot  in  his  own  name  confess  judgment.     An 
infant's  assignment  is  not  void  but  only  voidable,  and  that  only  by  the 
infant  or  some  one  in  his  right.     A  judgment  confessed  by  an  infant's 
partner  in  the  name  of  the  firm  is  void  and  will  not  support  an  attach- 
ment as  against  a  previous  assignee  of  the  goods  attached.     Soper  v. 
Fry,  37  Mich.  236. 

2226.  Foresman  sold  out  his  interest  in  a  firm  to  the  remaining 
members,  who  covenanted  jointly  and  severally  to  pay  the  debts,  and 
indemnify  him  against  them ;  the  remaining  members  continued  in  the 
same  business  as  a  partnership,  took  all  the  first  firm's  assets  and  took 
upon   themselves   the   debts,  without  any  division  of  Foresman 's  in- 
terest.    Foresman   paid  debts  of  the  first  firm,  the  second  firm  after- 
wards assigned  for  the  benefit  of  creditors.     Held,  that  Foresman  was 
entitled  to  come  in  as  a  creditor.     The  distribution  of  firms'  assets  is 
governed   by  the  equities  of  the  partners,  not  the  rights  of  creditors. 
In  insolvency  the  firm's  assets  go  to  discharge  the  firm's  creditors  be- 
fore the  individual  property  of  the  members  can  be  taken.     The  other 
partner  having  bought  Foresman  out  and  indemnified  him,  he  became 
then  surety,  and,  having  paid  debts,  was  subrogated  to  the  rights  of 
the  creditors.     Frow,  Jacobs  &  Co.'s  Estate,  73  Penn.  459. 

2227.  Contracts  made  by  one  partner  on  behalf  of  the  firm,  in  the 
business  of  the  firm,  are  binding  upon  the  firm.      Wilson  v.  Elliott,  57 
Hall,  N.  H.  316. 

2228.  It  is  a  violation  of  good  faith  for  any  partner  to  stipulate 
clandestinely  with  third  persons,  for  any  private  and  selfish  advantage 
and  benefit  to  himself  exclusive  of  the  partnership  ;  for  all  the  partner- 
ship property  and  partnership  contracts  should  be  managed  for  the 
equal  benefit  of  all  partners,  according  to  the  respective  interests  and 
shares  therein.     If,  therefore,  any  one  partner  should  so  stipulate  clan- 
destinely for  any  private  advantage  or  benefit  of  himself,  to  the  dis- 
advantage, or  in  fraud  of  his  partners,  he  will  in  equity  be  compelled 
to  divide  such  gains  with  them.     McMahon,  et.  al.  v.  McClernan,  10 
West  Va.  419. 

2229.  Although  the  most  conclusive  proof  is  not  required  where 
defendants  are  sued  as  partners,  there  must  be  some  proof  of  partner- 
ship.    Where  the  only  proof  of  partnership  was  the  evidence  of  the 
plaintiff  who  swore  they  were  partners  because  "  she  knew  it  in  busi- 
ness," "she  had  heard  so,"  "  everj'body  knew  it,"  "  and  there  was  a  sign 
on  the  store  Uhlig  &  Co.,"  "  she  knew  only  two  of  the  defendants, 
never  saw  and  did  not  know  the  name  of  the  third  one,"  and  which  of 
the  two  defendants  named  Uhlig  was  the  one  she  did  not  determine. 
Held,  that  there  was  no  direct  evidence  of  defendant's  copartnership, 
and    no   proper    proof  of   reputation   to   that   effect,   and   the   com- 
plaint should  be  dismissed  for  this  reason.     Oulke  v.  Uhlig.  55  Howard. 
Jf.  Y.  434. 


OF   STANDARD   DECISIONS.  307 

2230.  An  execution   creditor  of  an  individual  member  of  a  co- 
partnership, having  caused  property  of  such  copartnership  to  be  levied 
on  by  an  officer,  to  satisfy  his  debt,  was,  together  with  such  officer,  on 
application  of  another  partner,  temporarily  enjoined  from  making  sale 
until  the  partnership  debts  had  been  paid,  and  directed  to  deliver  such 
property  to  a  receiver  appointed  in  such  proceedings  to  settle  the  part- 
nership  affairs.     On  appeal  by  such  creditor  alone  to  the  Supreme 
•Court,  such  injunction  was  reversed  as  to  him,  and  the  cause  remanded 
for  further  proceedings.     Such  receiver  having  subsequently  sold  such 
property  and  reported  a  distribution  of  the  proceeds  of  the  sale  to  the 
partnership    creditors,    such  execution  creditor  instituted  an  action 
against  such  copartner  and  his  surety,  on  the  bond  executed  by  them 
to  procure  such  injunction,  to  recover  damages  resulting  therefrom. 
Held,  that  no  reversal  of  such  injunction  having  been  obtained  as  to 
such    officer,   or  as  to  the  appointment  of  such  receiver,  and  such 
creditor  having  continued  to  be  a  party  to  such  action,  resulting  in  the 
sale  of  such  property  and  the  distribution  of  the  proceeds  thereof, 
the  judgment  therein  rendered,  after  such  reversal,  the  reports  of  such 
sale  by  the  receiver,  and  the  approval  thereof  by  the  court,  were  com- 
petent evidence  against,  and  bound  him.     Donellan  v.  Hardy,  57  Ind. 
393. 

2231.  By  the  levy  of  his  execution  upon   partnership  property, 
the  creditor  of  an  individual  partner  acquires  no  interest  whatever  in 
the  property  itself,  but  only  a  lien  for  the  share  of  such  partner,  in- 
dividual^', in  the  surplus  remaining  after  all  partnership  debts  and 
prior  liens  shall  have  been  paid.     Ibid. 

2232.  An   action   at   law   cannot  be  maintained  by  one  partner 
against  another,  involving  the  state  of  the  partnership  accounts.     But 
one  partner  may  sue  another  at  law  on  a  promise  to  pay  a  balance 
which  has  been  ascertained  and  agreed  upon.     And  a,  fortiori  may  an 
action  at  law  be  maintained  on  negotiable  promissory  notes  given  by 
one  partner  to  another  for  the  amount  of  the  balance  ascertained  upon 
•dissolution.     And  it  would  not  be  competent  for  the  defendant  to  de- 
feat such  action  by  showing  that  there  had  been  no  final  settlement  of 
partnership  accounts.      McSherry  v.  Brooks  and  Barton,  Trustees,  46 
Md.  103. 

2233.  It   is    not    necessary  that  an  incoming  partner  should  do 
something,  in  order  to  escape  liability  for  the  previous  debts  and  obli- 
gations of  his  copartners,  but  on  the  contrary  it  is  necessary  that  he 
should  do  something  in  order  to  make  himself  liable  for  such  debts  or 
obligations.     Gauss  v.  Hobbs,  18  Kansas,  504. 

2234.  One  partner,  without  the  consent,  expressed  or  implied,  of 
his  copartner,  cannot  apply  a  claim  of  the  firm  to  the  payment  of  his 
individual  debt,  even  in  order  to  retain  for  the  firm  its  debtor's  cus- 
tom, and  such  attempted  application  with  knowledge  of  the  facts  by 
such  debtor,  will  not  defeat  an  action  at  law  upon  a  claim,  by  the  firm 
or  its  assignee.      Viles  v.  Bangs,  36   Wis.   131  ;  also,    Cobyhausen  v. 
Judd,  et  al,  43  Wis.  213. 

2235.  A  sale  by  a  partner,  in  payment  of  his  own  debt,  of  goods 
which     are     in     fact    goods    of    the    partnership,    but    which    the 
partnership    has    so    entrusted   to   him   as   to   enable   him   to    deal 
with  as  his  own,  and  to  induce  the  public  to  believe  to  be   his, 


308  MONROE'S  DIGEST 

and  which  the  creditor  receives  in  good  faith  and  without  notice  that 
they  are  the  goods  of  the  partnership,  is  valid  against  the  partnership 
and  its  creditors.  Locke  v.  Lewis,  124  Mass.  1. 

2236.  A  community  of  profit  and  loss  is  the  tost  of  a  partnershipr 
even  where  the  dispute  is  between  the  partners.     Parties  casually  met 
together,  who  make  an  agreement  to  buy  what  goods  they  can,  either 
jointl}'  or  separately,  and  on  reaching  the  home  market  to  sell  on  joint 
account,  and  divide  the  proceeds  among  themselves  pro  rata,  according 
to  the  amount  each  should  put  in  the  venture,  become  partners  as  to- 
such  venture.     Such  a  partnership  is  a  trading  or  commercial  partner- 
ship, and  one  of  the  partners  may  borrow  money  in  the  name  and  on 
the  credit  of  the  firm,  by  note,  bill,  or  otherwise,  and  all  will  be  liable.. 
Misappropriation  of  the  funds  by  the  partner  borrowing  the  money 
does  not  relieve  the  firm  from  liability.     Howze  v.  Patterson,  53  Ahu 
205. 

2237.  A  debtor,  being  a  member  of  an  insolvent  partnership,  con- 
veyed his  separate  estate  in  satisfaction  of  a  debt  due  to  a  separate 
creditor.     The  real  estate  exceeded  in  value,  to  a  considerable  amount,, 
the  debt  for  the  satisfaction  of  which  it  was  conveyed.     Held,  that  the 
other  creditors  had  an  interest  in  the  excess,  aud  that  in  equity  the 
property  conveyed  would  be  held  as  a  security,  first,  for  the  debt  due 
to  the  grantee,  and,  as  to  the  excess  of  value,  for  other  debts.    The  real 
estate  conveyed  being  the  separate  property  of  the  copartner,  the  ex- 
cess of  value  was  bound,  first,  for  his  separate  debts,  and  only  after 
satisfying  these  was  it  applicable  to  the  debts  of  the  partnership. 
Bailey,  et  al.  v.  Kennedy,  et  al.,  2  Del.  12. 

2238.  An  attachment  of  partnership  property  for  a  partnership- 
debt  will  prevail  over  a  prior  attachment  of  the  same  property  for  a 
separate  debt  of  one  of  the  partners,  or  over  a  mortgage  of  one  of  the 
partners  to  secure  his  individual  indebtedness.     Fargo  &  Co.  v.  Amesr 
et  ux.,  45  Iowa,  491. 

2239.  One   cannot  be   fixed   with   liability   as   a  partner  on  the 
ground  that  he  has  been  held  out  as  a  partner  unless  two  things  occur : 
First,  the  alleged  act  of  holding  out  must  have  been  done  either  by  him 
or  by  his  consent.     Second,  it  must  have  been  known  to  the  person 
seeking  to  avail  himself  of  it.     Denithorne  v.  Hook,  112  Penn.  240. 

2240.  A  person  who  permits  himself  to  be  held  out  as  a  partner 
is  liable  as  such,  whether  in  fact  a  partner  or  not.     Brugman,  et  al. 
v.  McGuire,  et  al,  32  Ark.  733. 

2241.  Accounts  between  partners  are  to  be  adjusted  on  principles- 
of  equity.     Maddox  v.  Stephenson,  60  Ga.  125. 

2242.  Where  one  of  two  partners  has  advanced  to  the  partner- 
ship more  than  the  other,  he  cannot  maintain  assumpsit  against  the 
other  partner  for  his  proportion  of  it,  so  long  as  the  partnership  debta 
are  not  paid.     Mickle  v.  Peet,  43  Conn.  65. 

2243.  When  two  or  more  parties,  engaging  in  a  business  venture 
with  the  understanding  that  there  is  to  be  a  communion  of  profit  and 
loss,  will  be  deemed  special  partners,  and  as  such,  in  case  of  loss,, 
severally   liable  for  their  pro  rata  share  of  such  loss.     Stettaner  Bros. 
v.  Carney  &  Stevens,  20  Kansas,  474. 

2244.  Where  the  evidence  shows  that  the  two  individual  signers* 
of  a  merely  joint  note  were,  at  the  date  of  the  note,  commercial  part- 


OF   STANDARD   DECISIONS.  309 

tiers,  and  that  the  consideration  of  the  note  was  money  borrowed  for 
;and  used  by  the  partnership,  each  of  the  makers  will  be  liable  on  the 
note  in  solido.  Mitchell  v.  D.  Armond,  30  La.  396. 

2245.  When  one  partner  in  a  firm  borrows  money,  representing 
that  it  is  for  the  use  of  the  firm,  and  gives  a  note  of  the  firm  therefor, 
•without  the  knowledge  of  his  copartners,  but  appropriates  the  money 
to  his  own  use,  the  firm  will  be  liable,  unless  the  creditor  knew,  or  had 
reasonable  ground  to  believe,  the  money  was  not  borrowed  for  the  use 
of  the  firm,  or  the  circumstances  were  such  as  to  put  him  upon  in- 
quiry, and  he  neglected  to  inquire.      Wagner  v.  Freschl,  56  N.  H.  495. 

2246.  Real  estate  held  by  a  commercial   firm  as  partnership  as- 
«ets,  upon  the  dissolution  of  the  partnership,  as  between  the  partners, 
vests  in  the  individual  members  thereof,  as  tenants  in  common.     Mc- 
Grnth  v.  Sinclair,  55  Miss.  89. 

2247.  Power  to  dispose  of  its  property.     The  general  creditors  of 
a,  firm   have  no  lien  on  its  assets,  any  more  than  ordinary  creditors 
have  upon  the  property  of  an  individual  debtor.     And  the  power  of  a 
firm  to  dispose  of  its  property,  all  the  members  cooperating,  is  as  un- 
limited as  that  of  an  individual.     Schmidlopp  v.  Currie,  55  Miss.  597. 

2248.  The  assignment  of  its  assets  for  the  benefit  of  its  creditors, 
made  by  a  defunct  partnership  to  an  individual  member  of  a  new  part- 
nership succeeding  to  the  former  business  of  the  old  concern,  will  not 
make  the  new  partnership  liable  to  the  defunct  partnership  for  the 
Talue  of  any  of  its  assets,  and  therefore  not  amendable  to  a  garnish- 
ment at   the  suit  of  any  creditor  of  the  defunct  concern.     Bancker  v. 
Harrington  &  Co.,  et  al.,  30  La.  136. 

2249.  A   creditor  of  one  of  the  partners  of  a  firm   may   attach 
such  partner's  interest  in  a  specific  portion  of  the  stock  of  goods  be- 
longing to  the  firm,  and  is  not  required,  in  order  to  render  the  attach- 
ment regular,  to  take  the  partner's  interest  in  the  entire  stock  of 
goods.     Fogg  v.  Lawry,  68  Me.  78. 

2250.  A  person,  who  has  no  interest  in  the  business  of  a  firm,  or 
in  the  capital  invested,  save  that  he  is  to  receive  a  share  of  the  profits, 
as  a  compensation  for  services,  or  for  money  loaned  for  the  benefit  of 
the  business,  is  not  a  partner,  and  cannot  be  held  liable  as  such  by  a 
creditor  of  the  firm.     Richardson  v.  Hewitt,  76  N.  Y<  59. 

2251.  Where  money  is  loaned  for  the  benefit  of  a  business,  and  is 
to  be  refunded  absolutely,  without  regard  to  the  profits ;  the  fact  that 
the  lender  is  to  receive  a  share  of  the  profits,  to  apply  on  the  indebted- 
ness, does  not  make  him  liable  to  creditors  as  a  partner  ;  to  have  that 
•effect,  the  payment  of  the  advancement  must  depend  upon  the  profits. 
Eager  v.  Crawford,  76  N.  Y.  97. 

2252.  A  promissory  note  executed  in  the  name  of  a  certain  com- 
mercial firm,  in  liquidation,  by  an  agent  of  one  of  the  former  partners, 
after  the  dissolution  of  the  firm,  is  not  binding  on  the  former  members 
who  have  not  given  any  specific  authority  for  the  execution  of  a  note. 
I)odd,  Brown  &  Co.  v.  John  Bishop  &  Co.,  etal.,30  La.  2d,  Book  1178. 

2253.  A  surviving  partner  is  entitled  to  sue  in  his  representative 
capacity  for  the  amount  due  the  partnership,  and  in  his  own  name  for 
the  amount  due  to  himself  individually.     The  respective  demands  may 
be  united  in  the  same  action,  but  should  be  separately  stated.     Quillen 
v.  Arnold,  12  Nevada,  235. 


310  MONROE'S  DIGEST 

2254.  Where  a  loan  is  made  by  two  members  of  a  commercial 
firm,  in  a  matter  foreign  to  the  business  of  the  firm,  and  in  disre- 
gard of  the  express  opposition  of  the  third  member,  the  two  members 
making  the  loan  are  justly  chargeable  with  its  amount.     David  G. 
Cooke  v.  Hugh  and  Andrew  Allison,  30  La.  963. 

2255.  Where  a  creditor  of  a  former  commercial  firm  sues  its  in- 
dividual members  for  goods  sold  to  the  firm,  and  declares  in  his  peti- 
tion on  the  itemized  account  of  the  goods,  and  also  on  a  promissory 
u»te  of  the  firm,  given  in  liquidation  of  the  account  by  one  not  author- 
ized to  sign  for  the  firm,  he  will  be  entitled  to  recover  for  the  goodsr 
on  the  unopposed  proof  of  their  sale  and  delivery.     One  who  acts  in 
such  a  manner  as  to  induce  others  to  believe  that  he  is  a  member  of  a 
certain  partnership,  makes  himself  liable  to  them  as  a  partner.    Doddr 
Brown  &  Co.  v.  John  Bishop  &  Co.,  et  al.,  30  La.  1178. 

2256.  A  party  seeking  exemption  from  the  liability  of  a  general 
partner,  under  the  Act  of  1874,  respecting  limited  partnerships,  must 
show  a  strict  compliance  with  the  act.     The  statute  does  not  require 
that  the  capital  should  be  paid  in  cash  ;  but  when  it  is  paid  in  propertyr 
it  should  be  so  stated,  and  its  cash  value  given.     Holliday,  et  al.  v. 
Union  P.  &  B.  Co.,  3  Colo.  342. 

2257.  In  an  action  brought  by  one  member  of  a  partnership  ta 
have  an  accounting  with  his  two  partners,  and  to  recover  a  balance- 
due   him,  where   the   referee    reports   that  such  plaintiff  contributed 
$663.48  to  the  capital,  and  the  other  two  partners  $370,  and  that  cer- 
tain profits  were  realized  from  their  business,  and  that  by  the  terms 
of  the  partnership  the  parties  were  to  share  equally  in  the  profits 
thereof,   held,  that   each   member   of  the  firm,  on  dissolution   of  the 
partnership,  is  entitled  to  a  return  of  his  capital,  and  in  addition  one- 
third  of  the  profits.     Norman  v.  Conn.,  20  Kansas,  159. 

2258.  The  individual  members  of  a  commercial  firm  may  execute 
a  valid  note,  and  a  valid  mortgage  securing  said  note  on  their  individ- 
ual property,  in  favor  of  the  firm,  and  any  third  person  acquiring 
the  note  from  the  firm,  in  good  faith,  for  value,  and  before  maturity, 
may  enforce  its  payment.     Pike,  Brother  &  Co.  v.  Hart  &  Hebert,  30- 
La."  868. 

2259.  Service  upon  member  of; — Service  upon  one  of  the  firm, 
after  dissolution,  confers  jurisdiction  to  render  a  judgment  which  may 
be  satisfied  out  of  the  partnership  property,  or  the  individual  prop- 
erty of  the  member  served,  but  confers  no  jurisdiction  of  a  partner 
not  served.     A  judgment  having  been  obtained  upon   a   promissory 
note,  the  note  became  merged  in  the  judgment,  and  could  not  after- 
wards be  made  a  cause  of  action.     Hartford,  Thayer  &  Co.  v.  Street, 
46  Iowa,  594. 

2260.  When  all  the  partners  are  in  a  situation  that  would  author- 
ize their  individual  creditors  to  sue  out  attachments  against  them  re- 
spectively, a  creditor  of  the  firm  may  procure  an  attachment  against 
the  partnership,  and  have  the  same  levied  upon  the  partnership  effects. 
Starr  v.  Mayer  &  Co.,  60  Ga.  546. 

2261.  R.  S.,  c.  82,  §  87,  provides  that  when  the  legal  representa- 
tive  of  a   deceased   person   is   a  party,  he  may  testify  to  any  facts, 
legally  admissible  upon  the  general  rules  of  evidence,  happening  be- 
fore the  death  of  such  person.     Held,  that  the  surviving  partner,  who- 


OF   STANDARD   DECISIONS.  311 

gives  bond  under  R.  S.,  c.  69,  §  2,  and  is  afterwards  sued  upon  a  note 
of  the  firm,  is  not,  therefore,  a  representative  of  bis  deceased  partner, 
and  as  such  entitled  to  testify  to  facts  happening  before  his  decease 
within  the. provisions  of  c.  82.  Holmes  v.  Brooks,  68  Me.  416. 

2262.  Note   in   renewal   of  another   made   by  same  partner  who 
signed  the  last,  which  itself  was  in  renewal  of  a  note  by  a  different 
firm,  of  which  the  signer  had  been  a  member,  upon  plea  of  non  est 
factum  by  the  copartner,  onus  of  showing  authority  to  sign  is  on  the 
plaintiff'.     Bryan  v.  Tooke,  et  al.,  60  Ga.  437. 

2263.  One  partner  in  a  mercantile  business  has  power  to  bind  the 
others  by  a  promissory  note  given  in  the  usual  course  of  business,  and 
the  payee  of  a  note,  executed  by  a  partner  in  the  firm  name,  has  the 
right  to  presume  that  it  was  executed  in  the  usual  course  of  business. 
Sherewood  v.  Snow,  Foote  &  Co.,  46  Iowa,  481. 

2264:.  The  fact  that  the  partner  signed  his  individual  name  before 
signing  that  of  the  firm,  should  be  considered  by  the  jury  in  determin- 
ing whether  or  not  the  payee  had  reason  to  know  that  the  considera- 
tion was  procured  for  his  own  individual  use.  Ibid. 

2265.  The  creditors  of  a  corporation  selected  three  of  their  num- 
ber, who  were  elected  directors  of  the  company,  and  charged  with  the 
management  of  its  business.     Held,  that  they  could  not  be  made  liable 
as  partners  for  supplies  furnished  them  and  used  in  the  conduct  of  the 
corporation  business.     Beeson  v.  Lang,  85  Penn.  St.  197. 

2266.  The  fact  that  the  owner  and  shipper  of  property  is  doing 
business  in  the  name  of  a  firm  in  violation  of  the  provisions  of  the 
Act    (chap.    281,   Laws   of   1833),  "  to   prevent   persons   transacting 
business   under   fictitious   names,"  and  that   the  property  is  marked 
with  the  firm  name,  is  no  defence  to  an  action  by  such  owner  against 
a  railroad  corporation  for  loss  of,  or  damage  to  the  property  while  in 
transit.     The  said  act,  being  highly  penal,  will  not  be  extended  by  im- 
plication or  construction  to  cases  not  within  the  terms  of  the  act  fairly 
interpreted.      Wood  v.  E.  R.  R.  Co.,  72  N.  Y.  App.  106. 

2267.  An  ordinary  partnership  cannot  be  held  liable  for  the  in- 
dividual debt  of  one  of  its  members  because  of  an  agreement  to  that 
effect  between  that  member  and  his  creditor,  unless  it  be  proved  that 
the  member  was  authorized  to  make  the  agreement  by  his  copartners, 
or  that  his  agreement  was  ratified  by  them,  or  that  the  partnership  was 
benefited  by  the  transaction.     W.  E.  Hamilton,  et  al.  v.  Nellie  Hodges, 
Tutrix,  etal,  30  La.  1290. 

2268.  In  a  feigned  issue  to  try  the  right  to  certain  cattle,  A.  of- 
fered evidence  that  he  purchased  the  cattle  through  B.,  who  was  his 
agent,  in  the  name  of  B. ;  that  it  was  agreed  that  the  latter  should 
butcher  and  sell  the  meat,  and  out  of  the  proceeds  return  to  A.  the 
cost  and  one-forth  of  a  cent  per  pound  of  dressed  meat  additional,  and 
that  B.  should  have  the  balance.     Upon  this  evidence  the  court  granted 
a  non-suit,  on  the  ground  that  it  did  not  tend  to  prove  an  exclusive 
ownership  in  A.,  but  established  a  partnership.     Held  (reversing  the 
court  below),  inter  se,  or  as  to  third  parties,  and  that  the  case  should 
have  been  submitted  to  the  jury  to  say  what  was  the  actual  relation 
of  the  parties.     Dale  v.  Peirce,  85  Penn.  St.  474. 

2269.  Partners  cannot,  during  the  existence  of  the  partnership, 
claim  individual  exemption  in  partnership  property,  when  taken  under 


SI 2  MONROE'S  DIGEST 

legal  process  for  partnership  debts.  (Overruling  in  this  particular, 
Howard  v.  Jones  &  Starke,  50  Ala.  67  ;  Dunklin  v.  Kimball,  50  Ala. 
251;  and  Giovanni  v.  First  Nat.  Bank,  51  Ala.  177.)  Giovanni  v. 
First  Nat.  Bank,  55  Ala.  305. 

2270.  Where  no  other  relation  exists  between  the  shareholders  of 
a  steamboat  than  that  which  arises  from  the  joint  ownership,  the}'  are 
not  partners,  nor  is  their  liability  to  be  measured  by  the  rules  of  law 
peculiar  to  the  partnership  relation.     When  one  of  the  shareholders 
sells  out  his  interest  in  a  steamboat,  and  the  bill  of  sale,  in  accordance 
with  the  Acts  of  Congress,  is  duly  acknowledged,  and  recorded,  it  is 
valid  notice  to  all  parties  and  subsequent  creditors  with  whom  the 
owners  may  contract.     Adams  v.  Carroll  &  Co.,  85  Penn.  St.  209. 

2271.  During   the   existence   of  a   partnership,  which   is  neither 
bankrupt  nor  contemplating  bankruptcy,  one  of  the  members  of  the 
iinn   may,  with  the  consent  of  the  other  partner,  or  partners,  upon  a 
bona  fide  consideration,  with  no  benefit  reserved,  assign  and  transfer 
the  assets  of  the  partnership  in  payment  of  his  individual  debt,  if  no 
lien  has  attached  to  such  assets ;  and  such  transfer  is  good  against  the 
firm  creditors.     Schmidlapp  v.  Currie,  55  Miss.  597. 

2272.  Where  accounts  are  kept  at  a  bankers  by  a  firm,  each  part- 
ner having  a  right  to  draw  checks,  and  also  by  the  individual  partners 
of  the  firm,  it  is  not  the  duty  of  the  bankers  to  inquire  into  the  pro- 
priety of  any  transfer  of  funds  which  may  be  made  from  and  to  the 
different  accounts.     Upon  the  death  of  one  partner  in  the  firm  having 
an   account  at  a  bankers,  the  surviving  partner  has  a  right  to  draw 
checks  upon  the  partnership  account.     Backhouse  v.  Charlton,  English 
Chancery  Division,  Law  Reports,  1878. 

2273.  It  is  only  in  equity  that  separate  creditors  of  a  partner  are 
•entitled  to  preference  over  the  creditors  of  a  partnership  in  the  distri- 
bution of  the  separate  effects   of  their  debtor.     The  lien  of  a  subse- 
quent judgment  for  an  individual  debt  does  not  take  priority  over  the 
lien  of  a  judgment  first  rendered  against  a  debtor  upon  a  partnership 
•debt.     Gillaspy  v.  Peck,  et  al.,  46  Iowa,  461. 

2274.  .In  partnership  suits  the  defence  of  the  Statute  of  Limita- 
tions is  not  available,  unless  six  years  have  elapsed  before  the  filing  of 
the  bill  since  the  dealings  of  the  partners  wholly  ceased.     A  partner- 
ship was  formed  between  two  civil  engineers  and  architects,  the  profits 
of  which  were  to  be  divided  in  shares  of  three-fifths  and  two-fifths. 
During  the  continuance  of  the  partnership  they  invested  moneys  of 
the  partnership  in  the  purchase  of  real  estate,  which  resulted  in  a  loss. 
Held,  that  the  loss  was  to  be  borne  by  the  partners  in  the  same  pro- 
portion as  they  were  to  share  the  profits  and  loss  of  their  other  busi- 
ness.    Storm  v.  Cumberland,  18  Grant's  Chance^,  Ontario,  245. 

2275.  When  a  party  fraudulently  misappropriates  the  money  of 
his  firm,  and  purchases,  in  his  own  name,  real  estate  and  policies  of 
life  insurance  with  firm  funds,  he  will  in   equity  be  charged,  b.\  con- 
struction, as  a  trustee  for  the  partnership.     When  all  the  premiums 
ai'e  paid  with  partnership  moneys,  it  makes  no  difference  that  the  fraud 
doer,  in  his  lifetime,  changed  the  life  policies  so  as  to  make  them  pay- 
able to  his  wife.     She,  having  paid  no  consideration  for  them,  will  be 
charged  as  a  trustee  for  the  firm,  and  will  be  permitted  to  derive  no 
benefit  from  them.     Shaler  v.  Trowbridge,  28  N.  J.  Eq.  595. 


OP   STANDARD   DECISIONS.  313 

2276.  Acceptance  by  one  partner  for  separate  debt,  and  not  in 
partnership  name — liability  of  copartners.  Where  the  plaintiffs,  a 
bank,  discounted  a  bill,  drawn  by  one  partner,  and  accepted  by  him  in 
the  name  of  the  firm,  the  manager  being  aware  that  it  was  intended  by 
such  partner  to  reimburse  himself  for  moneys  which  he  alleged  that 
he  had  advanced  to  the  firm,  and  it  appeared  that  such  acceptance  was 
unauthorized  by  the  other  partners,  Held,  that  the  bank  could  not  re- 
cover against  them.  The  partnership  name,  when  the  bill  was  so 
drawn  and  accepted,  was  J.  S.  W.  &  Co.,  and  the  acceptance  was  in 
the  name  of  W.  M.  &  Co.  Held,  that  this  also  would  have  been  fatal 
to  the  plaintiffs'  recovery.  Royal  Canadian  Bank  v.  Wilson,  et  al.,  24 
Upper  Canada  Com.  Pleas  Repts.  3ti20. 

22T7.  Real  estate  purchased  with  partnership  funds  for  partner- 
ship purposes,  and  appropriated  to  partnership  uses,  is  in  equity  pre- 
sumed to  be  partnership  property,  and  it  is,  under  such  circumstances, 
immaterial  whether  the  legal  title  is  taken  in  the  name  of  a  part  or  all 
of  the  partners.  Individual  real  property  brought  into  the  partner- 
ship by  the  copartners,  at  the  time  of  its  formation  or  afterwards,  and, 
by  proper  agreement  of  the  partners,  converted  into  partnership  prop- 
erty, and  appropriated  to  its  uses,  becomes  a  portion  of  the  capital 
stock  of  the  firm,  and  will  be  treated  in  equity  as  personalty,  although 
standing  in  the  name  of  an  individual  partner.  Hoyle  v.  Lowe,  12 
Nevada,  286. 

2278.  When  the  property  of  an  insolvent  partnership  is  ordered 
to  be  sold,  in  order  to  pay  the  partnership  debts,  the  right  of  redemp- 
tion does  not  exist.     Rhodes  v.  Williams,  12  Nevada,  20. 

2279.  When  a  non-resident  commercial  firm  make  an  agreement 
with  two  resident  firms,  in  virtue  of  which  agreement  one  of  the  resi- 
dent firms  is  to  purchase  certain  merchandise,  and  ship  it  in  the  name 
of  the  other,  and  the  other  resident  firm,  with  the  money  of  the  non- 
resident firm,  is  to  pay  for  the  merchandise,  and  each  of  the  resident 
firms  agree  to  receive,  instead  of  fix  sums  in  payment  of  their  services, 
certain  proportions  of  the  profits  to  arise  from  the  subsequent  sales 
of  the  merchandise,  and  also  agree  to  share  in  any  losses  resulting 
from   said  sales.      Held,  that  such  an  agreement  will  not  make  the 
said  firms  commercial  partners,  even  as  to  third  persons,  when  it  ap- 
pears that  they  did   not  intend  to  form  a  partnership,  and  that  they 
have  not  held  themselves  out  to  the  world  as  partners.     Chaffraix  & 
Agar  v.  John  B.  Lafitte  &  Co.,  30  La.  631. 

2280.  In  1865,  after  June  1st,  a  partner  retired,  selling  out  to  his 
copartner  his  interest  (one-half)  in  the  stock,  at  cost  or  invoice  prices. 
The   retired  partner  died;  and  in  October,  1866,  administration  was 
granted  upon  his  estate.     A  suit  was  commenced  against  the  adminis- 
trator in  August,  1873,  by  the  former  partner  of  the  intestate  upon  a 
certain   award,  to  which  suit  the  administrator  pleaded  in  January, 
1874,  among  other  things,  that  at  the  time  of  the  dissolution  the  stock 
was  worth  over  $1,500,  and  that  he,  the  administrator,  claimed  to  be 
entitled  to  one-half  thereof,  with  interest.     He  neither  expressly  offered 
to  set  off  the  claim,  nor  prayed  judgment  therefor.     The  action  and 
the  plea  remained  pending  until  February,  1877,  when  the  action  was 
voluntarily  dismissed  by  the  plaintiff  therein.     The  administrator  in 
July  thereafter  filed  the  present  bill  to  recover  for  his  intestate's  in- 


314  MONROE'S  DIGEST 

terest  in  the  stock.  The  bill  was  barred  by  the  Statute  of  Limitations, 
and  a  demurrer,  containing  that  ground  among  others,  was  properly 
sustained.  Crane  v.  Barry,  60  Ga.  362. 

2281.  Partners  are  liable  for  goods  furnished  for  use  of  the  firm 
even  though  the  vendor  was  ignorant  of  its  existence  and  supposed  at 
the  time  of  the  sale  that  he  was  dealing  with  and  giving  credit  solely 
to  one  of  the  partners.     Reynolds  v.  Cleveland,  4  Cow.  282. 

2282.  A  creditor  of  a  partnership  is  at  liberty  to  prove  the  fact 
of  the  partnership,  as  he  alleges  it  to  be,  without  regard  to  the  man- 
ner in  which  parties  have  arranged  their  affairs  between  themselves. 
He  is  not  concluded  by  their  written  contract  or  agreement  as  to  the 
relation  they  sustain  to  each  other.     Reed,  Crone  &  Co.  v.  Kremer  & 
Co.,  Ill  Penn.  482. 

2283.  The  firm  of  C.  F.  P.  &  Co.  made  their  promissory  note  pay- 
able to  their  order  and  indorsed  the  same.     L.,  one  of  the  firm  of  J. 
S.'s    Sons,   indorsed   his  own  name  and  the  name  of  the  latter  firm, 
thereon  without  their  knowledge  or  consent,  and  delivered  it  to  a  firm 
to  whom  he  was  individually  indebted  to  be  applied  upon  the  debt,  who 
transferred  the  note  to  plaintiff  for  value,  before  maturity,  plaintiff 
having  no  notice  of  the  circumstances  attending  the  execution  of  the 
note.     In  an  action  against  the  members  of  the  firm  of  J.  S.'s  Sons 
upon  the  indorsement,  held,  that  the  defendants  were  liable.     At.  State 
Bank  v.  Saver y,  82  N.  Y.  291. 


PAYABLE  AND  PAYMENT. 

2284.  When  a  promissory  note  is  made  in  this  State,  payable  in  a 
bank  named  but  not  located,  it  will  be  presumed,  unless  the  contrary 
appear,  that  the  bank  is  located  in  this  State.     Henderson  v.  Ackel- 
mire,  59  Ind.  540 ;  also,  Burroughs  v.  Wilson,  59  Ind.  536. 

2285.  If  the   payee   of  a   draft  present  and  surrender  it  to  the 
drawee,  on  receiving  his  check  for  the  amount,  which  he  neglects  to 
present  until  the  next  day,  the  drawee  is  discharged.     Smith  v.  Miller, 
43  N.  Y.  171. 

2286.  Money  voluntarily  paid  in  discharge  of  a  claim  made  upon 
the  payor,  or  to  buy  off  from  and  quit  a  criminal  prosecution  to  which 
he  is  exposed,  cannot  be  recovered.     Comstock  v.  Tupper,  50  Vt.  596. 

2287.  The  payment  to  the  sheriff  of  the  redemption  money,  under 
foreclosure,  in  United  States  treasury  notes,  and  national  bank  notesr 
which  were  received  without  objection,  Held,  sufficient.      Nopson  v. 
Horton,  20  Minn.  268. 

2288.  Where,  at  the  time  of  sending  a  draft,  the  sender  was,  as 
a  member  of  a  firm,  indebted  to  the  party  whom  the  draft  was  sent,  in 
several  notes,  most  of  which  were  then  due  and  bearing  interest,  and 
also  in  two  individual  notes,  not  then  due,  and  maturing  some  time 
afterwards,  and  which  bore  no  interest  before  maturity,  and  the  debtor, 
at   the  time  of  sending  the  draft,  directed  the  creditor  to  hold  the 
amount  until  advised  as  to  its  application,  and  stating  that  his  partner 
would  send  a  statement  of  matters  in  a  few  days,  and  such  partner  did 
afterwards  write,  giving  a  statement  as  to  the  firm  notes,  with  their 


OP  STANDARD   DECISIONS. 

interest  up  to  the  time  of  sending  the  draft,  and  the  other  debtor  made 
no  other  direction  for  several  months  after,  and  not  until  the  creditor 
had  applied  the  draft  upon  the  firm  notes,  it  was  held,  that  the  creditor 
was,  under  the  circumstances,  justified  in  making  the  application  he 
did,  and  being  rightfully  made,  it  could  not  be  repudiated  by  the  debtor 
afterwards.  Lewis  v.  Pease,  85  111.  31. 

2289.  Where  a  mortgagor  of  land  is  the  executor  of  the  will  of 
the  mortgagee,  and  charges  himself  with  the  amount  of  the  mortgage 
debt,  as  assets  in  his  hands  as  executor,  this  operates  as  a  payment  of 
the  debt  and  a  discharge  of  the  mortgage.     Martin  v.  Smith,  \  24  Mass, 
111. 

2290.  A  creditor  who  holds  notes  or  other  obligations  for  the  pay- 
ment of  money  assigned  to  him   by  his  debtor  as  collateral  security, 
and  neglects  to  use  reasonable  diligence  to  collect  them  when  due,, 
must  bear  the  loss  thence  accruing.     In   an  action  by  such  creditor 
against  the  debtor,  the  burden  is  upon  the  latter  to  show  that  the  loss 
upon  the  collaterals  was  caused  by  the  creditor's  negligence.     Charter 
Oak  Life  Ins.  Co.  v.  Smith,  et  al.,  43  Wis.  329. 

2291.  A  stipulation  in  a   promissory  note  that  no  credit  shall  be 
allowed  on  it  unless  indorsed  upon  it  by  the  payers,  will  not  prevent 
the  allowance  in  an  action  upon  the  note,  of  any  authorized  pajTnent 
actually  made,  but  not  indorsed.      Kasson,  et  al.  v.  Noltner,  43  Wis. 
646. 

2292.  On  March  27,  1873,  the  firm  of  C.  A.  B.  &   Co.,  being  in- 
debted  to  plaintiff,  an  oral  agreement  was  made  between  them,  by  which 
plaintiff  agreed  to  extend  the  time  of  payment  upon  receiving,  as  col- 
lateral security,  a  mortgage,  executed  by  defendant,  E.,  the  wife  of 
C.  A.  B.,  who  had  no  interest  in  the  firm,  upon  lands  owned  by  her. 
In  pursuance  thereof,  said  firm  upon  that  day  executed  and  delivered 
to  plaintiff  their  notes  for  the  amount  of  the  indebtedness.     On  the 
day  the  first  of  the  notes  fell  due,  said  firm  sent  to  plaintiff  checks  for 
the  amount  thereof,  with  intent  to  pay,  and  requested  the  same  to  be 
applied  in  payment  of  the  note.     Plaintiff  objected  to  such  applica- 
tion, and  requested  that  the  checks  should  be  applied  on  the  open  ac- 
count of  the  firm,  stating  that,  if  insisted  upon,  the  application  would 
be  made  in  payment  of  the  note ;  but  in  that  case,  the  account  with 
the  firm  would  be  closed,  and  payment  required  and  no  further  credit 
given.     This  was  not  expressly  assented  to,  but  no  further  direction 
was  given  as  to  the  application,  no  demand  was  made  for  the  note,  and 
the  firm  continued  to  purchase,  and  the   plaintiff'  to  sell  on  credit. 
Plaintiff,  soon  after  the  interview,  credited  the  checks  in  the  open  ac- 
count and  delivered  to  the  firm  receipted  vouchers,  showing  such  appli- 
cation.    Held,  that  this  did  not  amount  to  a  payment  of  the  note  ;  but 
the  facts  showed  an  acquiescence  of  the  parties  in  the  application  made. 
Penn.  Coal  Co.  v.  Slake,  85  N.  Y.  226. 

2293.  Payment  to  an  officer  who  has  a  valid  warrant  for  the  col- 
lection of  such  an  assessment  and  who  threatens  to  execute  the  same, 
is  not  a  voluntary  payment.     Bruecher  v.  Village  of  Post   Chester, 
101  N.  Y.  240. 

2294.  No  demand  for  a  return  of  the  money  so  paid  is  necessary 
before  the  commencement  of  an  action  to  recover  the  money.     Ibid. 

2295.  Payment  to  agent  who  receipts  in  full,  when  only  author- 


316  MONROE'S  DIGEST 

ized  to  receive  payment  on  account,  held  not  good,  even  on  account 
Curtis  v.  Innerity,  6  How.  U.  S.  146. 

2296.  Where  the  draft  of  a  third  party  is  received  by  a  creditor 
from  his  debtor  for  a  preexisting  debt,  the  presumption  is  that  it  was 
received  as  a  conditional  payment,  unless  there  was  an  agreement  that 
it  was  to  be  an  absolute  payment,  and  the  burden  then  of  proving  such 
-an  agreement  is  upon  the  debtor.     League  v.  Waring  &  Co.,  85  Penn. 
244. 

2297.  Taking  a  note  from  the  debtor  or  a  note  of  a  third  party,  is 
no  discharge  of  the  debt,  unless  it  is  expressly  agreed  between  the 
•creditor  and  debtor  that  it  is  in  absolute  payment  thereof.     Dunlap's 
Exr.  v.  Shanklin,  10  West  Virginia,  662. 

2298.  A  bank  check  given  and  accepted  by  the  partners  to  it  as 
payment  of  the  balance  found  due  upon  accounting  together,  is  such  a 
payment  as  will  entitle  the  drawer  to  be  discharged,  if  summoned  as 
trustee  of  the  payee,  in  an  action  in  which  the  writ  is  served  on  the 
day  after  such  payment,  although  the  check  is  not  presented  and  paid 
at  the  bank  on  which  it  is  drawn  until  the  next  day.     Getchell  v.  Chase, 
124  Mass.  366. 

2299.  Partial  payments  are  applied  when  their  sum  equals  or  ex- 
ceeds the  interest,  not  before.     Houston  v.  Crutcher,  31  Miss.  51 ;  over- 
ruled in  Brooks  v.  Robinson,  54  Miss.  272. 

2300.  When  partial  payments  are  made  on  a  debt  past  due  (Rev. 
Code,  §  1830),  they  should  be  applied  first  to  the  extinguishment  of  the 
accrued  interest,  and  only  the  residue  be  applied  to  the  principal. 
Coleman  v.  Smith,  55  Ala.  369. 

2301.  In  an  action   upon  a  promissory  note  money  paid  by  the 
maker  after  the  date  of  the  note  and  not  indorsed  thereon,  will  not  be 
allowed  as  a  credit,  if  there  is  nothing  in  the  record  to  show  it  was 
paid  as  such.     Craig  v.  Young,  2  Colorado,  112. 

2302.  A  married  woman  owning  land  joined  with  her  husband  in 
a  mortgage  which  was  assigned  to  a  bank  ;  in  a  scire  facias  on  it  the 
verdict  was  for  her.     She  sold  part  of  the  land  ;  the  purchaser  paid 
the  purchase-money  to  the  bank  in  order  to  procure  a  release  of  the 
mortgage.     Held,  that  she  could  not  recover  money  from  the  bank. 
One  who  voluntarily  pays  money  with  knowledge  or  means  of  know- 
ing of  the  facts,  and  without  fraud  on  him,  cannot  recover  it  because 
he  paid  in  ignorance  of  the  law.     Heal  Estate  Saving  Inst.  v.  Linder, 
74  Penn.  St.  371. 

2303.  Where  the  vendee  of  real  estate  contracts  to  pay  the  pur- 
chase-money in  cash  or  by  the  delivery  of  cotton  of  a  specified  class  at 
a  designated  place,  as  the  payments  become  due,  at  his  option,  the 
right  of  election  is  not  lost  by  the  failure  to  deliver  the  cotton  at  the 
time  and  place,  where  it  is  brought  about  by  the  conduct  of  the  vendor. 
Brodie  &  King  v.  Watkins  and  wife,  31  Ark.  319. 

2304.  A  payment  of  part  of  a  debt  before  due,  is  a  consideration 
sufficient  to  support  a  contract  to  give  time.     Hartman  v.  Danner,  74 
Penn.  St.  36. 

2305.  The  owner  of  a  note  secured  with  other  debts  by  mortgage* 
as  a  consideration  for  extension  of  time  received  a  new  note  indorsed 
by  defendant,  which  not  having  been  paid,  the  mortgage  was  foreclosed 
and  property  sold  for  less  than  enough  to  pay  the  other  debts.     Held, 


OF   STANDARD  DECISIONS.  31T 

that  such  owner  was  entitled  to  apply  proceeds  of  sale  to  the  payment 
of  the  other  debts.  See  W.  Tr.  &  C.  Go.  v.  Kliderhouse,  87  N.  Y. 
430. 

2306.  Money  paid  under  a  mutual  mistake  for  that  which  has  na 
legal  existence  or  validity,  may  be  recovered  back  as  paid  without  con- 
sideration, where  the  vendor  is  responsible  for  the  mistake,  or  repre- 
sents the  person  so  responsible.     So  held,  of  the  bona  fide  transfer  by 
executors  of  a  certificate  of  an  execution  sale  that  turned  out  to  be 
void,  but  which  had  been  issued  to  their  testator.     McGoren  v.  Averyr 
37  Mich.  120. 

2307.  Any  third  person,  who  demands  no  subrogation,  may  tender 
to  a  creditor,  either  in  his  own  name,  or  in  that  of  the  debtor,  the  debt 
due  by  the  latter,  in  whatever  species  of  property  the  debt  is  payable,, 
and  compel  the  creditor  to  accept  the  payment  in  that  property.     State 
ex  rel.  John  Klein  &  Co.  v.  Ed.  Pilsbury,  Adm'r  of  Finance,  etc.,  29- 
La.  787. 

2308.  By  the  law  of  this  commonwealth,  the  giving  of  the  nego- 
tiable promissory  note  of  a  third  person  is  evidence  of  payment  of  a 
preexisting  debt,  and  sufficient  where  there  is  nothing  to  defeat  the  in- 
ference or  show  that  such  was  not  the  intention  of  the  parties ;  and  in 
the  absence  of  evidence  to  the  contrary,  the  rule  will  be  presumed  to- 
be  the  same  in  Maine.     Ely  v.  James,  123  Mass.  36. 

2309.  In  an  action  brought  for  the  purpose  of  establishing  the 
payment  of  a  promissory  note  between  parties  not  traders,  Held,  re- 
versing judgment  of  court  below,  that  the  question  was  one  which 
must  be  governed  by  the  laws  of  England  and  may  be  made  by  parole 
evidence.     Garden,  et  al.  &  Finlay,  et  al.,  8  L.  C.  J.  139,  and  10  L.  C. 
R.  255,  Q.  B.  1860,  1233,  section  1,  and  2341  C.  C. 

2310.  If  the  holder  of  notes  by  agreement  accepts  of  the  maker 
policies  of  insurance  covering  property  destroyed  by  fire,  upon  which 
there  is  a  prima  facie  cause  of  action,  in  discharge  of  the  notes,  in  the 
absence  of  fraud  he  will  be  bound  by  the  contract,  and  the  maker,  when 
sued  on  the  notes,  need  not  show  that  a  complete  cause  of  action  ex- 
isted in  his  favor  on  the  policies,  to  make  his  defence  availing.     Bruns~ 
wick  v.  Birkenbend,  83  111.  413. 

2311.  If  a  party  with  full  knowledge  of  all  the  facts  in  the  case 
voluntarily  pays  money  in  satisfaction  or  discharge  of  a  demand  un- 
justly made  upon  him,  he  cannot  afterwards  allege  such  payment  ta 
have  been  made  by  compulsion  and  recover  back  the  money.    Murphy, 
Neal  &  Co.,  et  al.  v.  Greighton,  45  Iowa,  179. 

2312.  Where  property  belonging  to  a  firm  is  mortgaged  to  secure 
a  note  executed  in  the  firm  name,  a  partner  has  a  right  to  invest  upon 
a   foreclosure   of  the   mortgage   before   a  personal  judgment  can  be 
rendered  against  him  upon  the  note.     In  case  the  party  shall  pay  the 
note  executed  by  the  firm,  he  then  becomes  subrogated  to  the  rights 
of  the  mortgagee,  and  his  lien  will  be  prior  to  that  of  a  mortgage  exe- 
cuted upon  the  same  property  by  a  grantee  of  the  firm.      Warren  v. 
Hoyzle.tt,  45  Iowa,  235. 

2313.  An  indorsement  of  a  partial  payment  on  the  back  of  a  note, 
when  the  fact  of  the  payment  is  controverted  by  the  paj'or  or  his  rep- 
resentative, is  not  evidence  sufficient   to   suspend  the  running  of  the 
statute  of  limitations.     The  burden  of  proving  that  the  payment  in~ 


318  MONROE'S  DIGEST 

dorsed  on  the  note  was  actually  made,  and  at  the  time  it  purports  to 
have  been  made  in  the  indorsement,  when  the  alleged  payment  is  con- 
troverted, is  upon  the  holder  of  the  note,  in  a  case  where  he  claims 
that  the  running  of  the  statute  of  limitations  was  suspended  by  the 
legal  payment.  Frazer's  AdnCrs  v.  Frazer  &  Co.,  13  Bush,  Ky. 
397. 

2314.  An  action  lies  on  a  note  payable  by  installments  as  soon  as 
the  first  day   of  payment  is  passed,  but  it  lies  only  for  the  amount  of 
the  first  installment,  each  of  them  being  considered  as  a  separate  debt. 

Clarihue  v.  Morris,  2  Rev.  de  Leg.,  30  K.  B.  1820. 

2315.  A  sale  of  goods  upon  a  mere  promise  by  the  purchaser  to 
pay  for  them  out  of  the  avails  of  their  sale,  and  of  a  stock  of  other 
goods  owned  by  the  purchaser,  where  the  transaction  is  understood  by 
them  to  create  no  relation  between  them  but  that  of  debtor  and  cred- 
itor,  does  not  give  the  seller  a  lien  on  the  goods,  after  their  delivery, 
or  on  the  avails  of  their  sale,  that  can  be  specifically  enforced ;  nor 
does  it  deprive  the  purchaser,  where  he  owes  the  seller  several  debts, 
of  the   right  to  direct,  when  he  makes  a   payment  to  such  creditor, 
which  debt  shall  be  paid  thereby.     Stewart  \.  Hopkins,  30  Ohio,  502. 

2216.  Where  a  person  owes  another  several  distinct  debts,  he  has 
the  right  to  choose  which  debt  he  will  pay  first ;  and  where,  at  the 
time  of  payment,  he  expressly  directs  wjiat  application  is  to  be  made 
of  the  pa3rment,  the  creditor,  if  he  retains  the  money,  is  bound  to  ap- 
propriate it  as  directed  by  the  debtor.  The  creditor  cannot  divert  a 
payment  so  made  by  his  debtor,  from  the  appropriation  made  by  him, 
upon  mere  equitable  considerations,  that  do  not  amount  to  an  agree- 
ment between  the  parties,  giving  the  creditor  a  right  to  appropriate 
the  payment  otherwise  than  directed  by  the  debtor,  though  mere  equi- 
table considerations  may  control,  where  the  payment  is  made  without 
designating  its  application.  Stewart  v.  Hopkins,  30  Ohio,  502. 

2317.  Payment  of  part  of  a  debt  without  release  under  seal,  al- 
though received  in  full  satisfaction,  will  not  discharge  the  debt.     Hart- 
man  v.  Danner,  74  Penn.  St.  36. 

2318.  A  bonus  is  not  a  gift  or  gratuity,  but  a  sum  paid  for  services 
upon  a  consideration  in  addition  to  or  in  excess  of  that  which  would 
ordinarily  be  given.     Kenicott  v.  The  Supervisors,  16  Wall.  U.  S.  452. 

2319.  When  a  payment  is  made  voluntarily  on  an  unfounded  de- 
mand, or  in  ignorance  of  the  law  or  legal  circumstances  of  the  case,  it 
•cannot  be  recovered  back.     Nothing  occurring  afterwards  in  the  de- 
termination of  new  controversies  between  other  parties  can  be  carried 
back   to  affect  a  transaction  which  when  it  took  place  was  fair  and 
just.     Finnell  v.  Brew,  81  Penn.  St.  362. 

2320.  When  the  debts  are  of  like  nature,  the  imputation  of  pay- 
ments is  made  to  the  debt  longest  due.     Bloom  &  Co.  v.   Kern,  30  La. 
1263. 

2321.  Payments   made  voluntarily  by  the   mortgagee   of  claims 
against  the  estate,  which  was  not  necessary  for  the  protection  of  his 
own  interest  in  the  property,  will  not  entitle  him  to  be  subrogated  to 
the  rights  of  the  creditors  whose  liens  he  discharged.     Bayard,  et  al. 
-v.  McGraw,  1  Bradwell's,  111.  App.  Rpts.  134. 

2322.  Partial  payments  made  on  a  debt  past  due  (Rev.  Code,  s. 
J  S  >0)  should  be  applied  first  to  the  extinguishment  of  accrued  inter- 


OP   STANDARD   DECISIONS.  319 

«st,  and  only  the  residue  applied  to  the  principal.     Coleman  v.  Smith, 
55  Ala.  369. 

2323.  Payments   claimed   as  credits  on  a  debt,  and  not  allowed 
when  judgment  was  rendered  on  it,  cannot  be  recovered  back  after- 
wards,  without  an  express  promise   to  repay    them.      Turlington  v. 
Slaughter,  54   Ala.  195.     Payment  of  a  debt  made  by  giving  several 
notes,  and  only  a  part  of  the  notes  are  paid,  the  original  debt  is  re- 
vived as  to  the  notes  unpaid.     Crawford  v.  Roberts,  50  Cal.  236. 

2324.  The  taking  of  the  debtor's  acceptances  does  not  operate  as 
payment  of  the  debt  in  the  absence  of  an  agreement  that  they  should 
be  received  in  payment.     Au  Sable  River  Broom  Co.  v.  Sanborn,  36 
Mich.  358. 

2325.  On  a  suit  against  six  joint  and  several  makers  of  a  note, 
when  some  had  paid  off  their  shares  of  principal  and  interest  due  at 
the  time  paid,  by  agreement  with  the  payee,  the  said  paj-ments  ought 
to  be  applied  to  the  pro  rata  of  principal  as  well  as  interest  due  by  the 
makers  so  paying  their  shares ;  and  that  the  verdict  against  all  the  de- 
fendants  for  the  balance,  due   after   said  payments  are  so  credited,  is 
legal  and  valid,  and  ought  to  be  upheld,  especially  where  the  evidence 
as  to  how  many  of  the  shares  which  have  been  so  paid  is  conflicting, 
And   if  some  of  it  was  believed  by  the  jury,  and  the  payments  had 
been  credited  on  the  note,  the  verdict  would  be  too  large.     Donaldson 
T.  Cothran,  Adm'r,  et  al.,  60  Ga.  603. 

2326.  As  a  general  rule,  the  premium  note  of  an  insurance  broker, 
received  by  the  insurers  in  payment  of  a  policy  for  his  principal,  dis- 
charges the  principal  from  liability  to  the  insurers  on  account  of  the 
premium.     But  if  the  policy  contain  a  provision  that,  in  case  of  loss, 
the  amount  of  the  premium  note  shall  be  deducted  from  the  insurance, 
the  insured  must  submit  to  the  deduction,  although  he  has  before  paid 
the  amount  of  the  premium  to  the  broker.     In  case  of  the  death  and 
insolvency  of  the  broker,  a  court  of  equity  will  not  compel  his  admin- 
istrators to  sequester  for  the  benefit  of  the  insurers  any  sum  received 
by  them  from  the  insured  on  account  of  premiums,  if  the  company 
hold  the  broker's  note  therefor.      Union  Ins.  Co.  v.  Grant,  68  Me.  229. 

2327.  The  payment  of  money  cannot  be  made  dependent  on  the 
performance  of  a  condition  by  the  party  to   whom    it   is  to  be  paid, 
which  condition,  by  its  terms,  may  not  be  performed  until  after  the 
•date  at  which  the  money  is  to  be  paid.     Front  St.  M.  &  0.   R.  R.  Co. 
v.  Butter,  50  Cal.  574. 

2328.  A   legal  presumption  of  payment  of  a  bond,  given  for  the 
payment  of  money,  does  not  arise  from  mere  lapse  of  time,  where  the 
bond  has  not  been  due  for  twenty  years,  before  commencement  of  suit  by 
the  recovery  of  the  sum  thereby  due  and  payable.     If  a  shorter  period, 
even  a  single  day  less  than  twenty  years,  has  elapsed,  the  presumption 
of  satisfaction   from   mere  lapse  of  time  does  not  arise.     While    the 
mere  lapse  of  twenty  years,  without  explanatory    circumstances,  af- 
fords  a  presumption  of  law  that  the  debt  is  paid,  even  though  it  be 
due  by  specialty,  still  payment  may  be  inferred  by  the  jury  from  cir- 
cumstances with  the  lapse  of  a  shorter  period  of  time  than  twenty 
years.     Sadler's  Adm'r  v.  Kennedy's  AdmSrx,  11  W.  Ya.  187. 

2329.  Plea   of  payment  tried  by  a  magistrate,  and  found  for  de- 
fendants on  the  evidence,  cannot  be  changed  on  appeal  so  as  to  defeat 


320  MONROE'S  DIGEST 

such  defence,  by  adding  usees  for  whom  plaintiffs  sue.     Copp,  et  al.  v- 
Lowry  &  Co.,  60  Ga.  637. 

2330.  Where  plaintiff  held  several  promissory  notes  against  de- 
ceased, all  but  one  being  valid,  and  also  held  certain  shares  of  mining 
stock  belonging  to  deceased.     Held,  that,  in  the  absence  of  any  show- 
ing to  the  effect  that  the  deceased  ever  authorized  plaintiff  to  appro- 
priate the  proceeds  derived  from  the  sale  of  such  stock  toward  the  dis- 
charge of  the  fraudulent  note,  the  law  compelled  plaintiff  to  credit  the- 
money  on  the   valid   notes.     McCausland  v.  Ralston,  12  Nevada,  195. 

2331.  When  payment,  by  savings  bank,  of  deposit  of  trust  fundr 
to  administrator   of  trustee  will  discharge  the  bank.     Boone  v.  Citi- 
zens? S.  Bank,  84  N.  Y.  83. 

2332.  Payments  made  by  a  debtor,  without  special  instructions  as 
to    their   imputation,  will  be   imputed   in  accordance  with  the    tacit 
agreement  of  the  parties,  as  disclosed  by  their  dealings  and    corre- 
spondence.    A  debtor,  who  receives  without  objection  an  account  cur* 
rent   from  his  creditor,  which  imputes  payments  made  by  him  to  the 
less  onerous  part  of  his  debt,  is  held  to  ratify  by  his  silence  the  impu- 
tation of  payment  made  in  the  account.     McLear  &  Kendall  v.  Suc- 
cession  of  Hunsicker,  30  La.  1225. 

2333.  The  defendant  was  indebted  to  the  plaintiff — first,  as  he  was 
member  of  a  firm,  and  afterwards  individually,  and  gave  his  note  in 
payment,  taking  back  this  receipt :     "  Received  from  F.  S.  Brewer  his 
90  day  note  for  $300,  to  be  paid  at  either  bank  in  Portland."     There 
was   a  contention  on  the  joint  account  of  the  defendants,  or  on  the 
several  account  of  Brewer.     Held,  that  upon  this  issue  it  'was   not 
error  to  instruct  the  jury  that  the  receipt  was  silent  and  could  have  no 
legitimate  bearing  one  way  or  the  other.     Hunt  v.  Brewer,  68  Me. 
262. 

2334.  A.  sent  B.  to  do  work  for  C.,  and  A.'s  bookkeeper,  after  the 
completion  of  the  work,  made  out,  in  accordance  with  his  duty,  the 
bill  therefor  upon  one  of  A.'s  printed  billheads,  which  he  placed  in  the 
hands  of  B.,  who  demanded  and  received  payment  for  the  work  from 
C.     Upon  the  billhead  was  printed,  in  fine   type,  "  All  moneys  to  be 
paid  to  the  treasurer,  and  bills  to  be  receipted  by  him."     Held,  that  the 
bill  so  made   out  by  their  bookkeeper,  and  by  him  put  in  the  hands  or 
Thayer,  and  by  Thaj^er  shown  to  the  defendant,  was  sufficient  evidence 
of  Thayer's   authority   to  justify   the    defendant   in   paying  him  the 
amount  of  the  bill,  if  the  defendant  acted  in  good  faith,  and  without 
having  observed  the  words  in  fine  print  at  the  top  of  the  bill  requiring 
all  moneys  to  be  paid  to  the  plaintiff's  treasurer.     The  case  was  rightly 
submitted  to  the  jury.     Kinsman  v.  Kershaw,  119  Mass.  140. 

2335.  The  United  States  is  entitled  to  priority  of  payment  out  of 
the  effects  of  its  bankrupt  or  insolvent  debtor,  whether  he  be  principal 
or  surety,  or  be  solely,  or  only  jointly  with  others,  liable,  and  it  is  im- 
material when   the   debt  was   contracted.     Lewis,    Trustee  v.  United 
States,  92  U.  S.  618. 


OF   STANDARD  DECISIONS.  321 


PLEDGES. 

2336.  If  a  certificate  of  stock  in  a  corporation,  pledged  as  col- 
lateral security,  is  transferred  by  the  pledgee  to  a  creditor  of  his  ownr 
the  pledger  may  treat  this  as  a  conversion,  and  the  fact   that  the 
pledgee   had   a   greater   number   of    shares    standing   to    his   credit 
on  the  books  of  the  corporation  is  immaterial.     Fay  v.  Gray,  124 
Mass.  500. 

2337.  A.  borrowed  of  a  bank  money  on  call,  and  deposited  with  it 
as  collateral  security  certain  mining  stocks,  with  written  authority  to 
sell  them  at  its  discretion.      The  loan  remaining  unpaid,  the  bank 
notified  him  that,  unless  he  paid  it,  the  stock  would  be  sold.     He 
failed,  after  repeated  demands,  to  pay  it,  and  they  were  sold,  for  more 
than  their  market  value,  to  three  directors  of  the  bank,  and  the  pro- 
ceeds applied  to  the  payment  of  the  loan.     A.,  who  was  advised  of  the 
sale,  and  that  enough  had  been  realized  to  pay  his  indebtedness,  made 
no  objection.     The  stocks  were  transferred  to  the  purchasers.     Nearly 
four  years  after  the  sale,  the  stocks  having  in  the  meantime  greatly  in- 
creased in  value,  A.  notified  the  bank  of  his  desire  and  purpose  to  re- 
deem them,  and  subsequently  tiled  his  bill  against  it,  asserting  his 
right  so  to  redeem,  and  praying  for  general  relief.     Held,  that  he  is 
entitled  to  no  relief.     Hayward  v.  National  Bank,  96  U.  S.  611. 

2338.  The  subsequent  bankruptcy  of  the  pledger  of  a  negotiable 
instrument  does  not  deprive  the  pledgees  of  their  right  to  dispose  of  it 
upon  his  default.     Jerome  v.  Me  Carter,   94  U.  S.  734. 

2339.  One  who  lends  money  on  the  pledge  of  stock  held  in  trust, 
will  be  held  to  have  had  notice  that  the  trustee  was  abusing  his  trust 
and  apptying  the  money  lent  to  his  own  purposes,  when  the  certificates 
of  the  stock  pledged  show  on  their  face  that  the  stock  is  held  in  trust 
(though  the  name  of  the  cestui  que  trust  does  not  appear),  and  when 
the  loan  was  apparently  for  the  private  purposes  of  the  borrower,  and 
that  fact  would  have  been  revealed  by  inquiry.     Gaston  v.  Am.  Ex. 
Bank,  29  M.  J.  98. 

2340.  To  constitute  a  pledge,  there  must  be  a  delivery  and  re- 
tention by  the  pledgee  of  the  thing  pledged.     If  a  party  receives  a 
pledge  as  collateral  security,  and  in  course,  or  at  any  time  after  he  re- 
ceives it,  suffers  it  to  go  back  into  the   possession  of  the  person  by 
whom  it  was  pledged,  the  moment  that  he  yields  up  the  possession  of 
it,  he  yields  his  right,  and  any  subsequent  purchaser,  or  an  attaching 
creditor,  would  be  entitled  to  hold  it  against  him.     Collins  v.  Buck,  63 
Me.  459. 

2341.  A  pledgee  of  a  chattel  may  sell  his  interest  in  the  same,  and 
the  owner  cannot  recover  the  same  of  the  purchaser  without  tendering 
him   the   sum   due  thereon,  and  if  the  pledgee  is   suffered  to  retain 
possession  after  tender  of  the  sum  due,  and  a  sale  is  made  to  an  inno- 
cent purchaser,  who  has  no  notice  of  the  fact  of  its  being  only  a  pledge, 
the  latter  will  acquire  the  title,  even  as  against  the  real  owner.    Brad- 
ley v.  Parks,  et  al.,  83  111.  169. 

2342.  The  pledgee  of  stock  is  entitled  to  the  dividends  accruing 
while  he  holds  the  stock.     Gaty  v.  Holliday,  8  Mo.  A  pp.  118. 

2343.  If  the  pledger  collects  the  dividends  from  the  corporation 
21 


322  MONROE'S  DIGEST 

he  receives  them  to  the  pledgee's  use,  and  an  action  to  recover  them 
will  lie  by  the  latter  against  the  former.      Ibid. 

2344.  Though  a  pledgee  cannot  purchase  the  pledge  so  as  to  acquire 
an  absolute  title  without  the  consent  of  the  pledger,  yet  such  assent 
may  be  presumed  where  the  facts  are  notorious  and  no  dissent  is  shown. 
Carroll  v.  MManphy  Savings  Bank,  8  Mo.  App.  249. 

2345.  It  was  held  by   the  Supreme  Court  of  Illinois,  that  the 
pledgee  of  mortgage  bonds  payable  upon  condition,  like  the  pledgee  of 
commercial  paper,  held  as  collateral  security  for  a  debt,  has  no  right, 
in  the  absence  of  an  express  power  so  to  do,  to  sell  security  and  apply 
the  proceeds  in  extinguishment  of  the  debt.     But  it  is  his  duty  to  hold 
the  same  and  collect  when  due,  and  apply  the  proceeds  to  extinguish 
the  debt  secured.     Joliet  Iron  and  Steel  Co.  v.  Scioto  Fire  and  Brick 
Co.,  80  Ills.  337. 

2346.  Where  a  commercial  correspondent  advances  his  own  money 
or  credit  for  the  purchase  of  property  and  takes  the  bill  of  lading  in  his 
own  name,  looking  to  the  property  as  the  means  of  reimbursement,  he 
becomes   the   owner  instead  of  a  pledgee,  and  so  remains  until  the 
mover  in  the  transaction  pays  the  purchase  price,  and  his  relation  to 
the  latter  is  that  of  an  owner  under  a  contract  to  sell  and  deliver  when 
the  purchase  price  is  paid.     Moors  v.  Kidder,  106  N.  Y.  32. 

2347.  The  pledge  of  commercial  paper  as  collateral  security  for 
the  payment  of  a  debt,  does  not,  in  the  absence  of  a  special  power  for 
that  purpose,  authorize  the  party  to  whom  such  paper  is  so  pledged, 
to  sell  the  securities  so  pledged,  upon   default  of  payment  either  at 
public  or  private  sale.     He  is  bound  to  hold  and  collect  the  same  as  it 
becomes  due,  and  apply  the  net  proceeds  to  the  payment  of  the  debt  so 
secured.     A  person  holding  property  or  securities  in  pledge,  occupies 
the  relation  of  trustee  for  the  owner,  and  as  such,  in  the  absence  of 
special  power  to  be  otherwise,  is  bound  to  proceed  as  a  prudent  owner 
would  with  his  own.     From  the  very  nature  of  the  case  property  can 
only  be  applied  as  security  through  the  process  of  sale.     Not  so  with 
bonds,  mortgages,  or  promissory  notes.      Wheeler  v.  Newboulds,  1 6  N. 
Y.  392.     The  pledgee's  title  to  negotiable  bonds,  he  being  the  bona 
fide  holder  of  them  for  value,  is  good  against  all  the  world.     Gibson  v. 
Lenhart,  Receiver,  111  Penn.  624. 

2348.  Where  the  pledger  of  a  chattel,  after  tendering  the  sum  due 
the  pledgee,  takes  no  steps  to  recover  possession,  he  will  authorize 
others  to  regard  the  pledge  as  still  subsisting,  and  if  purchased  by  an- 
other he  cannot  recover  the  same  in  replevin,  without  tendering  the 
sum  due,  to  such  purchaser.     Ibid. 

2349.  Possession  by  the  pledgee   is  essential  to  a  pledge  ;  actual 
possession  when  practicable;  constructive  possession  when  actual  pos- 
session is  impracticable.     Seymour  v.  Colburn,  43  Wis.  67. 

2350.  A   pledge  is  the  lien  ci'eated  by  the  delivery  of  personal 
property  by  the  owner  to  another,  upon  an  expressed  or  implied  agree- 
ment that  it  shall  be  retained  as  a  security  for  an  existing  or  future 
debt.     To  create  a  pledge,  the  pledgee  must  have  the  possession  and 
control  of  the  property.     Corbett  v.  Underwood,  83  111.  324. 

2351.  J.  A.  H.  borrowed  $5,000  from  the  Citizens'  National  Bank 
of  Baltimore,  and   deposited  as  collateral  security  for  the  payment 
thereof  a  note  of  W.  H.  &  Sons,  and  a  $100  U.  S.  bond.     Next  day, 


OF   STANDARD   DECISIONS.  323 

lie  gave  to  the  bank  his  individual  cbeck  on  himself  for  the  amount  so 
borrowed,  and  the  bank  delivered  to  him  the  collaterals  before  de- 
posited. Shortly  afterward  J.  A.  H.  failed,  and  it  was  discovered  by 
the  bank  that  he  had  returned  the  note  to  the  drawers,  W.  H.  &  Sons, 
who  on  demand  refused  to  deliver  up  to  the  bank  the  note  or  its  value. 
In  an  action  by  the  bank  to  recover  from  W.  H.  &  Sons  the  value  of 
the  note,  it  was  held, 

2352.  1st.  If  a  bank  or  other  party   take  a   negotiable   bill   or 
note  before  maturity,  for  consideration  and  without  mala  fides,  such 
party  acquires  a  good   title,  notwithstanding  there  may  have   been 
negligence ;  and  gross  negligence,  while  it  may  be  evidence  of  mala 

Jides,  will  not  alone  be  sufficient  to  defeat  the  plaintiff's  title. 

2353.  2d.  Nothing  less  than   proof  of    knowledge  of   facts  that 
show  the  want  of  authority  on  the  part  of  the  person  transferring  the 
note,  will  be  sufficient  to  defeat  the  plaintiff's  title. 

2354.  3d.  The  plaintiff  is  not   bouiid  to  make  inquiry,  and  mere 
negligence,  however  gross,  not  amounting  to  wilful  and  fraudulent 
blindness,  while  it  would  be  evidence  of  mala  Jides,  is  not  the  same 
thing. 

2355.  4th.  It  makes  no  difference  that  the  bill  or  note  is  only 
pledged  as  collateral  security,  and  is  not  absolutely  and  unconditionally 
transferred. 

2356.  5th.  If  the  bank  knew  that  the  note  was  not  the  property 
of  the  party  offering  to  deposit  or  sell  it,  the  taking  of  the  note  by  way 
of  collateral  security  for  money  loaned  imparted  no  title  as  against  the 
real  owner. 

2357.  6th.  It  is  a  well  established    principle  that  possession  is 
necessary  to  perfect  a  title  by  pledge,  and  it  is  equally  well  settled 
that  the  delivery  back  of  the  possession  of  the  thing  pledged,  by  the 
act  or  with  the  consent  of  the  pledgee,  terminates  his  title,  unless  it  be 
delivered  back  for  a  temporary   purpose  only  or  to  be  held  by  the 
pledgor  in  a  new  character,  such  as  special  bailee  or  agent.     Hooper  v. 
Citizens'  National  Bank,  47  Md.  88. 

2358.  Possession  is  of  the  essence  of  a  pledge  ;  and,  without  it,  no 
privilege  can  exist  as  against  third  persons.     This  doctrine  is  in  ac- 
cordance with  both  the  common  and  the  civil  law,  the  Code  ^Napoleon 
(Art.  2076)  and  the  civil  code  of  Louisiana  (Art.  3162).     Casey  v.  Cav- 
.aroc,  96  U.  S.  S.  Ct.  467. 

2359.  The  thing  pledged  may  be  in  the  temporary  possession  of 
the  pledgor  as  special  bailer,  without  defeating  the  legal  possession  of 
the  pledgee;  but  where  it  has  never  been  out  of  the  pledger's  actual 
possession  and  has  always  been  subject  to  his  disposal  by  way  of  col- 
lection, sale,  substitution,  or  exchange,  no  pledge  or  privilege  exists  as 
against  third  persons.     Ibid. 

2360.  Where  it  was  agreed  that  a' bank  should  deposit  bills  and 
notes  with  its  president  and  his  partner,  by  way  of  pledge,  to  secure  a 
loan  made  by  a  third  party,  and  the  president  delivers  them  back  to 
the  bank  officers  for  collection,  with  power  to  substitute  other  securities 
therefor,  it  is  not  such  a  delivery  and  possession  as  is  necessary  to 
create  a  privilege  by  the  law  of  Louisiana.     Ibid. 

2361.  The  ruling  in  Casey  v.  Cavaroc  (supra,  ^[  467),  as  to  what 
constitutes  a  valid  pledge  of  securities,  so  far  as  third  persons  are  con- 


324  MONROE'S  DIGEST 

cerned,  applies  to  this  case.     Casey  v.  National  Bank,  96  U.  S.  S^ 
Ct.  492. 

2362.  Defendant  received  money  of  plaintiff  to  insure  him  for  be- 
coming bail  for  another  at  plaintiff's  request,  and  gave  plaintiff  his  ac- 
countable receipt  therefor.     Defendant  subsequently  loaned  the  money 
and  received  interest  for  its  use.     Held,  that  he  was  liable  for  the  in- 
terest  thus   received,   and   parol  evidence   was   admissible    to   show 
the   facts  that   created   his  liability.     Gilson  v.  Martin,  49  Rowell,. 
Vt.  474. 

2363.  Where  an  accommodation  bill  has  been  pledged  for  less  than 
its  face,  and  the  pledgee  transfers  it  and  receives  the  full  value,  and  the 
accommodation   indorser  is  compelled  to  pay  the  bill,  he  cannot  re- 
cover the  surplus  from  the  pledgee ;  such  action  can  only  be  main- 
tained by  the  pledger.     Gregory  v.  Burrall,  2  Wend.  391. 

2364.  A  pledge  ceases  to  be  operative  when  its  object  is  effected, 
and  the  whole  beneficial  interest  in  the  security  pledged  then  becomes 
absolute  in  the  equitable  owner.      Ward  v.  Ward,  37  Mich.  253. 

2365.  A  pledgee  of  stock  who  in  good  faith  takes  the  security,  for 
his  benefit  in  name  of  an  irresponsible  trustee  for  the  avowed  purpose 
of  avoiding   individual   liability   as    shareholder,   incurs   no   liability 
as  such.     Anderson  v.  Philadelphia    Warehouse  Co.,  Ill  U.  S.  479. 

2366.  H.  &  Co.  advanced  money  upon  C.  0.  R.  R.  Co.  stock  in 
good  faith,  which  stock  was  pledged  to  them  under  forged  powers  of 
transfer.     The  railroad  company,  upon  the  receipt  of  the  original  certif- 
icates of  stock,  in  like  good  faith  cancelled  them,  and  issued  new  ones 
in  the  name  of  H.  &  Co.     Held,     (1)  That  as  between  H.  &  Co.  and 
the  railroad  company  [the  rights  of  third  parties  not  being  involved] 
the  loss  must  fall  upon  H.  &  Co.     (2)  That  the  fact  of  the  stock  issued 
to  H.  &  Co.  having  been  subsequently  sold  by  them  to  third  partiesr 
did  not  affect  the  case,  it  appearing  that  the  sale  was  made  by  H.  & 
Co.  with  knowledge  of  the  forgery.     (3)  That  the  payment  of  the 
dividends  on  the  stock  to  H.  &  Co.,  by  the  agents  of  the  R.  R.  Co.r 
after  the  company  was  informed  of  the  foi-gery,  had  no  significance,, 
and  could  not  estop  the  company,  it  appearing  that  they  were  not  paid 
by  the  direction  of  the  company,  but  through  the  mistake  or  inadvert- 
ence of  the  agent,  in  overlooking  or  failing  to  observe  the  directions 
given  by  the  officers  of  the  company  that  "  they  were  in  litigation,  and 
were  not  to  be  paid  till  ordered  by  the  Court."     (4)  That  the  issuing 
of  the  certificates  to  H.  &  Co.,  by  the  R.  R.  Co.,  upon  the  faith  of  the- 
forged  powers  of  attorney  sent  them  by  H.  &  Co.,  did  not  create  an 
estoppel  against  the  company.     Declarations  to  create  an  estoppel 
must  be  made  by  a  party  whose  duty  it  is  to  know  and  state  the  truth, 
and  must  be  relied  on  by  one  who  has  no  other  means  of  information, 
or  is  justified  in  relying  upon  such  declarations.     Hambleton  &  Co.  v. 
Central  0.  R.  R.  Co.,  44  Md.  &51. 

2367.  A.   deposited   with   B.  certain    Canada    railway  bonds  as 
security  for  a  debt.     On  bill  filed  by  B.  for  foreclosure  or  sale,  Held, 
that  B.  was  entitled  to  an  order  for  sale  only.     Jessel  M.  R.,the  plain- 
tiff, is  in  a  position  of  a  mere  pledgee  at  law  of  certain  chattels,  and  I 
do  not  think  that  a  person  in  that  position  has  the  same  right  of  fore- 
closure as  a  mortgagee  by  deposit  of  the  title  deeds  of  land.     The 
principle  upon  which  the  Court  acts  in  the  latter  case  is,  that  in  a. 


OF   STANDARD   DECISIONS.  325 

regular  legal  mortgage  there  has  been  an  actual  conveyance  of  the 
legal  ownership,  and  then  the  Court  has  interfered  to  prevent  that 
from  having  its  full  effect;  and  when  the  ground  of  interference  is 
gone,  by  the  non-payment  of  the  debt,  the  Court  simply  removes  the 
stop  it  has  itself  put  on.  Then,  when  there  is  a  deposit  of  title  deeds, 
the  Court  treats  that  as  an  agreement  to  execute  a  legal  mortgage, 
and  therefore  as  carrying  with  it  all  the  remedies  incident  to  such  a 
mortgage.  None  of  this  reasoning  applies  to  a  pledge  of  chattels;  the 
pledgee  never  had  the  absolute  ownership  at  law,  and  his  equitable 
rights  cannot  exceed  his  legal  title.  There  will  be  an  order  for  sale  of 
the  bonds  by  auction,  but,  as  there  seems  to  be  a  good  reason  why  the 
plaintiff  should  not  be  forced  to  part  with  them,  I  will  give  him  liberty 
to  bid,  he  not  conducting  the  sale.  Carter  v.  Wake,  4  Chancery  Divi- 
sion M.  R.,  Feb.  12,  1877,  c.  48. 

2368.  A  bill  of  sale  of  goods,  absolute  in  its  terms,  given  to  pro- 
tect the  vendee  against  his  liability  as  surety  for  the  vendor,  and  to 
secure  a  debt  of  the  vendor  to  the  vendee,  with  a  verbal  agreement 
that  when  the  vendee  should  be  relieved  from  his  liability  and  the  debt 
paid,  his  interest  in  the  property  cease,  but  with  no  condition  of  de- 
feasance in  writing,  is  not  a  mortgage.     As  between  the  parties  to  the 
absolute,  formal  bill  of  sale,  it  could  not  be  shown,  b}'  proof  of  a  parol 
•defeasance,  that   the  conveyance  was  a  mortgage.     Pennock  \.  Mc- 
Cormick,  120  Mass.  275. 

2369.  A  factor  cannot,  generally,  pledge  the  goods  of  his  principal 
for  his  own  liabilities,  and  is  bound  to  obey  the  orders  of  his  consignor 
&s  to  the  terms  of  sale.     Singer  Manufacturing  Co.  v.  Hudson,  4  Mo. 
Ot.  Appeals  (St.  Louis)  145. 

2370.  The  fact  that  the  stock  of  a  corporation  is  only  transferable 
on  the  books  of  the  company,  does  not  prevent  a  stockholder  from 
validly  pledging  his  stock,  by  merely  delivering  to  his  creditor  the  cer- 
tificates of  his  stock.     A  transfer  of  the  stock  on  the  books  is  not  nec- 
essary to  perfect  the  pledge.     Blonin  v.  Liquidations  of  Hart  &  Hebert. 
30  La.  714. 

2371.  A  person  holding  stock  in  a  fiduciary  capacity  has,  prima 
facie,  no  right  to  pledge  it  to  secure  a  debt  growing  out  of  an  inde- 
pendent transaction  unconnected  with  the  trust ;  and  whoever  takes  it 
as  security  for  such  debt,  does  it  at  his  own  peril.     Prall  v.  Tilt.  28 
N.  J.  Ch.  479. 

2372.  Where  a  bailee  of  goods  for  safe  keeping  merely  pledges  the 
same  with  intent  to  convert  the  proceeds  to  his  own  use,  such  pledge 
amounts  to  larceny  by  the  pledger,  and  the  pledgee  acquires  no  title 
as  against  the  owner,  though  he  dealt  bona  fide  with   the  pledger. 

Gottlieb  v.  Hartman,  3  Colo.  53. 

2373.  When  one  delivers  chattels  to  another  as  indemnity  for 
suretyship,  the  law  regards  such  delivery  as  a  pledge  merely.     Nor 
•does  it  alter  the  case  in  a  Court  of  Equity  that  the  property  is  trans- 
ferred by  absolute  bill  of  sale,  not  even  if  the  contract  stipulated  that 
the  pledge  shall  be  irredeemable.     Ibid. 

2374.  Where  the  pledgee  of  a  mortgage  note,  in  whose  hands  it 
has  been  placed   to  secure  a  debt  due  him  by  the  pledger,  sells  the 
property  mortgaged  to  secure  the  note  for  a  sum  less  than  the  amount 
of  the  note,  and   immediately  resells  it  for  a  larger  sum  than  that  of 


826  MONROE'S  DIGEST 

the  note,  he  becomes  liable  to  the  pledgor,  not  for  the  price  at  which, 
the  property  was  resold,  but  merely  for  the  amount  of  the  note.  Mrs. 
A.  R.  Richardson  v.  Moses  Mann,  30  La.  1060. 

2375.  A  consignee  who  has  made  advances  on  cotton  shipped  to- 
him,  has  a  right  of  pledge  on  it  and  its  proceeds,  for  the  reimburse- 
ment of  those  advances ;  and  until  the  debt  due  for  those  advances  is 
paid,  he  is  not  bound  to  accept  or  pay  an}'  drafts  drawn  on  him  by  the 
consignor  against  said  cotton,  at  or  about  the  time  it  was  shipped,  in 
favor  of  a  third  person  who  had  discounted  the  drafts  for  the  con- 
signor, and  thus  enabled  the  latter  to  buy  the  cotton  shipped  to  the 
consignee.      Thos.  E.  Helm,  et  al.  v.  Meyer,  Weis  &  Co.,  30  La.  943. 

2376.  A  pledgee  who  was  surety  on  a  promissory  note  transferred 
the  property  to  the  payee  for  the   purpose  of  discharging  the  debt. 
Held,  that  the  transfer  did  not  change  the  status  of  the  property,  and, 
that  the  pledgor  had  the  right  to  redeem,  even  after  the  maturity. 
Morgan^  et  al.  v.  Dod,  3  Colo.  551. 

2377.  A  pledgee  can  sell  only,  and   for  the  purpose  of  applying 
the  proceeds  to  the  extinguishment  of  the  debt.     Such  sale  must  be  at 
public  auction,  after  due  notice  to  the  pledgor  or  owner.     Ibid. 

2378.  Where  the   subject    matter   of  a  pledge  is  divisible,  the 
pledgee  has  no  right  to  sell  more  than  is  necessary  to  satisfy  the  debt ;. 
and  if  he  does  so,  is  responsible  to  the  pledgor  for  the  damage  he  may 
sustain.     Fitzgerald  v.  Blocher,  32  Ark.  742. 

3379.  The  acceptance  by  the  pledgor  of  the  surplus  arising  from 
an  illegal  sale  of  the  articles  pledged,  is  no  waiver  of  his  rights  to' 
damages  resulting  from  the  sale.  Ibid. 

2380.  Where  the  pledgor,  at  the  time  of  making  the  pledge,  waives 
notice  of  sale,  he  cannot,  after  the  sale  of  the  pledged  property,  com- 
plain  of  a  want  of  notice.     Ibid. 

2381.  Where  a  pledgee  of   scrip  sells  more  than  is  necessary  to 
satisfy  his  debt,  and  pays  the  surplus  to  the  pledgor,  who  buys  other 
script  to  replace  what  has  been  sold,  the  measure  of  damages  is  the 
difference  between  the  price  for  which  the  excess  sold  and  that  paid  by 
the  pledgor  to  replace  it.     1  bid. 

2382.  Where  one  deposits  United  States  "  five  twenty  "  bonds  for 
safe  keeping  with  a  banking  institution,  and  the  cashier  of  such  insti- 
tution pledges  them,  the  pledgee,  acting  in  good  faith,  takes  a  good 
title ;  and  the  recovery  of  the  bonds  through  the  fraud  and  bad  faith 
of  such  cashier  does  not  divert  the  title  out  of  the  pledgee  and  revert 
it  in  the  depositor.     Ringling  v.  Kohn,  et  aZ.,  4  Mo.  Appeal  Reports^ 
(St.  Louis)  59. 

2383.  There  can  be  no  valid  pledge  of  a  mortgage,  or  vendor's 
privilege,  by  mere  agreement  of  parties  to  that  effect,  unaccompanied 
by  an  actual  or  symbolical  delivery  of  possession.     Sevin  &  Oourdainr 
in  Liquidation  v.  Theogene  Caillonet,  30  La.  528. 

2384.  The  assignee  of  a  note,  held  as  collateral  securitj^  for  a  debt 
due  from  the  assignor,  has  no  power  to  deal  with  it,  except  to  accom- 
plish the  purpose  for  which  he  holds  it.     He  cannot  bind  the  assignor 
by  a  contract  with  the  maker  for  forbearance.     His  liability  to  perform 
such  contract  is  dependent  upon  the  will  of  the  assignor,  who  may  pay 
his  debt  and  take  back  the  collateral  at  any  time  ;  and,  therefore,  a 
promise  of  the  maker  to  pay  a  larger  interest,  in  consideration  of  such; 


OF  STANDARD   DECISIONS.  327 

forbearance,  is  without  consideration  and  not  binding  upon  him.     Key 
v.  Fielding,  32  Ark.  56. 

2385.  Such  assignee  is  a  trustee  for  his  assignor,  and  all  profit, 
benefit,  or  advantage  made  by  him,  by  his  dealing  with  the  note,  be- 
longs to  the  assignor,  and  not  to  himself,  and  must  be  applied  to  the 
satisfaction  of   the  assignor's  debt,  and  the  excess,  if  any,  paid  to  the 
assignor.     Ibid. 

2386.  One  to  whom  a  promissory  note  is  pledged  as  collateral 
security  for  a  debt,  unless  specially  authorized,  cannot  sell  the  same  on 
default,  but  is  bound  to  collect  it  at  maturity,  and  apply  the  proceeds 
to  the  debt.     Joliet  Iron  Co.  v.  Scioto  Fire  Brick  Co.,  82  111.  584. 

2387.  Personal  propert}'  specifically  pledged  for  a  particular  loan 
cannot,  in  the  absence  of  a  special  agreement,  be  held  by  the  pledgee 
for  any  other  advance.     Duncan  v.  Brennan,  83  N.  Y.  487. 

2388.  Nor  can  it  be  so  held  although  the  pledgees  are  bankers  ;  the 
general  lien  which  bankers   hold  on  property  deposited  with  them  for 
a   balance   due   on   general   account  cannot  be  invoked.     Duncan  v. 
Brennan,  83  N.  Y.  487. 

2389.  Where  a  bond  and  mortgage  are  assigned  as  collateral  for  a 
loan,  with  an  agreement  upon   the  part  of  the  lender  that  he  will,  on 
payment  of  the  mortgage  pay  to  the  borrower  the  excess  of  the  prin- 
cipal over  and  above  the  amount  of  the  loan,  and  without  any  agree- 
ment as  to  a  foreclosure,  and  where  the  mortgage  is  foreclosed  by  the 
lender  without  making  the  borrower  a  part}'  thereto,  or  to  any  other 
proceedings  to  foreclose  him,  and  the  mortgaged  premises  are  bid  in  by 
the  lender,  the  equitable  interest  which  the  borrower  retained  in  the 
mortgage,  attaches  to  the  land,  and  he  is  entitled  to  the  surplus,  in 
case  of  a  sale  thereof  bv  the  lender  for  more  than  the  amount  of  his 
claim.     Dalton  v.  Smith ,"86  N.  Y.  176. 

2390.  The   assignment  merely  of  an  expected  surplus   in   prop- 
erty pledged  to  secure  a  usurious  loan  does  not  entitle  the  assignee  to 
avoid   the   lien   or   to  claim  the  property  free  therefrom.     Dalton  v. 
Smith,  86  N.  Y.  176. 


POSSESSION. 

2391.  Possession  by  a  man  or  his  tenant  is  notice  of  the  title, 
equitable  as  well  as  legal,  under  which  he  claims  the  property.     Wan- 
ner v.  Sisson,  29  N.  J.  141. 

2392.  No  length  of  constructive  possession  will  ripen  a  defective 
title  to  land  into  a  good  one;  the  possession  must  be  actual  and  con- 
tinuous.    Where  there  is  no  actual  occupation  of  land  shown,  the  law 
carries  the  possession  to  the  real  title.     A  possession  of  land  under 
color  of  title  must  be  taken  by  a  man  himself,  his  servants  or  tenants, 
and  by  him  or  them  continued  for  seven  years  together.     Therefore, 
where  in  an  action  to  recover  land  it  appeared  that  the  plaintiff  under 
color  of  title  had  made  occasional  entries  upon  the  land  at  long  inter- 
vals, for  the  purpose  at  one  time  of  cutting  timber,  at  another  of  mak- 
ing bricks,  etc.     Held,  that  the  plaintiff  was  not  entitled  to  recover. 

Williams  v.  Wallace,  78  N.  C.  354. 


328  MONROE'S  DIGEST 

2393.  Where  A.  enters  into  possession  of  land,  the  property  of 
B.'s  wife,  under  a  deed   from  B.  alone,  the  possession  of  A.  is  in  law 
the  possession  of  the  wife,  and  enures  to  her  benefit.     Dams  v.  M. 
Arthur,  78  N.  C.  357. 

2394.  Possession  of  a  note,  bond  or  bill,  unattended  by  circum- 
stances which,  in  a  reasonable  mind,  ought  to  excite  suspicion  or  dis- 
trust, or  put  a  party  on  inquiry,  is  prima  facie  evidence  of  ownership 
in  the  holder,  and  a  purchaser  from  such  a  holder  will  be  protected  un- 
til his  purchase  is  assailed  by  one  who  can  establish  a  legal  title  to  the 
instrument.     Garvin  v.  Wiswell,  83  111.  215. 


POWER. 

2395.  A  power  committed  to  two  or  more  persons,  unless  it  other- 
wise appear  from  the  instrument  by  which  it  is  delegated,  is  properly 
executed  only  by  the  joint  act  of  all  who  have  accepted  the  trust. 
Giddings  v.  Butler,  47  Texas,  535. 

2396.  If  a  grantor  has  power  to  sell,  and  sells,  his  act  will  pass 
title,  whether  he  refers  to  the  power  or  not.     His  act  would  pass  his 
own  and  the  interest  of  his  principal.     Hough  v.  Hill,  47  Texas,  148. 

2397.  Where  a  party  alleges  that  a  deed  executed  by  his  attorney, 
under  a  power  to  convey  is  invalid  for  matters  not  apparent  on  its 
face,  the  burden  of  proving  them  is  on  such  party.     Clements  v.  Mach- 
eboPMf,  et  al.,  (2  Otto,)  U.  S.  S.  Ct.  Rpts.  92,  418. 

2398.  A  deed  of  conveyance  executed  in  his  own  name  by  one 
having  a  special  power  of  attornej',  "  for  me  and  in  my  name,  place 
and  stead  to  grant "  etc.,  and  this  without  referring  to  or  reciting  the 
warrant  in  the  deed,  conveys  no  title.     Bassett  v.  Hawk,  114  Penn.  502. 

2399.  An  attorney  who  makes  a  surrender  ought  to  make  it  in 
the  usual  form,  as  by  the  rod,  etc.,  according  to  the  custom  of  the 
manor,  and  he  ought  to  make  it  in  the  name  of  the  copyholder,  not  in 
his  own  name.      Kennedy  v.  Sheer,  3  Watts.  95 ;     Hejferman  v.  Ad- 
dams,  7  Watts.  116;  Shokeeker  v.  Farmers1  Bank,  8  Watts.  191. 

2400.  A  special  power  of  attorney  can  be  executed  in  no  other 
manner  than  that  prescribed  in  the  warrant  itself.     Bassett  v.  Hawk, 
114  Penn.  502. 


PREFERENCE. 

2401.  A  sale  of  property  by  an   insolvent  debtor,  made  in  good 
faith,  to  pay  a  particular  creditor  of  his,  to  the  exclusion  of  others, 
without  any  intention  to  defraud,  but  simply  to  prefer  one  creditor  to 
another,  although  the  purchaser  may  have  had  full  knowledge  of  such 
intent  on  the  part  of  the  vendor,  is  a  valid  sale.     Avery  v.  Eastes,  18 
Kansas,  505. 

2402.  A  bond  given  by  a  debtor  in  failing  circumstances,  covering 
all  his   property  for  the  benefit  of  preferred  creditors,  is  contrary  to 
the  policy  of  the  statute  against  fraudulent  insolvency.       Comly  v. 

Waters,  et  al.,  2  Del.  72. 


OF  STANDARD  DECISIONS.  329 


PRESUMPTIONS. 

2403.  In  the  absence  of  proof  to  the  contrary,  it  will  be  presumed 
that  notaries  of  other  States  have  no  greater  powers  than  are  possessed 
by  those  of  this  State.     Me  Lear  &   Kendall  v.  Succession  of  Hun- 
sicker,  29  La.  539. 

2404.  Presumption  is  that  drawer  of  draft  is  solvent;  also,  that 
•common  law  rule  as  to  charging  drawer  prevailing  here  prevails  in  an- 
other State.     First  Nat.  Bank  v.    Fourth  Nat.  Sank,  77  N.  Y.  320. 

2405.  In  respect  to  a  forged  instrument  there  is  no  presumption 
of  delivery  at  its  date  or  at  any  particular  time.     Bern.  Paper  Co.  v. 
O' Dougherty,  81  N.  Y.  424. 

2406.  Where  a  purchaser  has  notice  of  the  facts  upon  which  an 
adverse  claim  depends,  he  is  deemed  to  have  notice  of  the  consequences 
of  those  facts.     Guyler  v.  Ferrill,  1  Abbott,  U.  S.  169. 

2407.  Mortgage    presumed    paid    after   lapse   of   twenty  years. 
Hughes  v.  Edwards,  9  Wheat.  U.  S.  489. 

2408.  No  presumption  of  payment  can  arise  from  lapse  of  time 
against  a  mortgagee  or  his  assigns  in  possession.     Brobst  v.  Brock, 
10  Wall.  U.  S.  509. 

2409.  The  presumption  is  that  letters,  mailed  to  a  person  directed 
to  him  at  his  place  of  residence,  were  received  by  him.     Oregon  S.  S. 
Co.  v.  Otis,  100  N.  Y.  446. 

2410.  A  wife's  separate  and  personal  possession  of  specific  articles 
of  personal  property  draws  after  it  the  presumption  of  ownership. 

Whiton  v.  Snyder,  88  N.  Y.  299. 


PRINCIPAL  AND  AGENT. 

2411.  S.  being  employed  by  the  respondent  to  carry  on  his  busi- 
ness, credited  the  respondent  in  an  account  with  the  appellants  with 
the  sum  of  5,800  taels,  which  he  falsely  represented  to  have  been  ad- 
vanced in  the  ordinary  course  of  business  on  certain  goods  intended 
for  shipment.     He  then  drew  a  bill  in  the  name  of  the  respondent's  firm 
on  the  appellants  for  the  balance  of  account,  and  having  received  the 
proceeds   of   such   bill,  including   the  said  5,800  taels,  appropriated 
them  to  his  own  use.     On  a  special  case  submitting  whether  the  re- 
spondent was  liable  to  the  appellants  in   the  said  sum  with  interest 
from  date  of  receipt  by  S.,  Held,  that  the  proceeds  of  the  bill  having 
been  received  as  aforesaid  by  S.,  acting  throughout  within  the  scope  of 
his  authority,  belonging  to  the  respondent,  and  that  he  having  thus 
been  paid  5,800  taels  without  consideration,  the  appellants  were  en- 
titled to  recover  back  the  same.     Barwick  v.  The  English  Joint  Stock 
Bank,  Law  Rep.  2  Ex.  259,  and  Mackay  v.  The  Commercial  Bank  of 
New  Brunswick,  Law  Rep.  5  P.  C.  412;  approved.     Swive  v.  Fran- 
ks, 41  Canada  Law  Rep.  3  P.  C.  106. 

2412.  Where  a  secret  gratuity  is  given  to  an  agent  with  the  inten- 
tion of  influencing  his  mind  in  favor  of  the  giver  of  the  gratuity,  and 
the  agent,  on  subsequently  entering  into  a  contract  with  such  giver  on 


330  MONROE'S  DIGEST 

behalf  of  his  principal,  is  actually  influenced  by  the  gratuity  in  as* 
senting  to  stipulations  prejudicial  to  the  interest  of  his  principal,  al- 
though the  gratuity  was  hot  given  directly  with  relation  to  such  par- 
ticular contract,  the  transaction  is  fraudulent  as  against  the  principal,, 
and  the  contract  is  void  at  his  option.  Smith  v.  tiorby,  3  App.  Cases, 
Eng.  (41-42  Vic.)  552. 

2413.  One  purchasing  goods  for  another  makes  himself  personally 
liable,  if  he  contracts  in  his  own  name  without  disclosing  his  principal ;. 
and    this,    although  the  seller  supposes  the  purchaser  is  acting  as 
agent ;  it  is  not  sufficient  to  clear  the  agent  from  liability  that  the 
seller   has  the  means  of  ascertaining  the  name  of  the  principal;  he 
must  have  actual  knowledge.     Cobb  v.  Knapp,  7J  N.  Y.  348. 

2414.  Also,  held,  that  a  subsequent  disclosure  of  the  principals  by 
defendant,  and  the  commencement  of  an  action  against  them  by  plain- 
tiff was  not  conclusive  of  an  election  to  hold  them  only  responsible ;. 
that  the  fact  of  commencing  such  action,  and  the  statements  in  the 
complaint,  were  proper  to  be  considered  by  the  jury  on  the  question 
of  knowledge  as  to  the  principals,  but  did  not  operate  as  a  legal  dis- 
charge.    Ibid. 

2415.  Where  agents,  without  express  authority,  assume  to  act  for 
their  principals,  the  latter  will  be  bound,  if,  with  knowledge  of  such 
assumptions,  they  acquiesce  in  and   receive  the  benefit  of  such  acts  ; 
and  from  a  continuous  course  of  such  dealings,  the  public  will  be  at 
liberty  to  deal  with  the  agents  as  having  original  authority  to  perform 
the  acts,  and  the  principals  will  be  estopped  to  try  it.     Cooperative  As- 
sociation v.  McGonnico,  53  Miss.  233. 

2416.  Where,  at  the  time  of  an  agreement  for  a  loan  to  be  secured 
by  bond  and  mortgage,  at  the  request  of  the  borrower,  and  upon  his 
agreement  to  pay  interest  from  that  time,  the  money  was  left  in  the 
hands  of  an  agent  of  the  lender  until  the  borrower  could  perfect  the 
security,  held,  that  the  agreement  and  the  retention  of  the  interest  in 
pursuance  thereof  did  not  constitute  -usury.     Bevier  v.  Covell,  87  N. 
Y.  50. 

2417.  Also,  held,  that  the  fact  was  immaterial  that  the  agent,  with- 
out authority  from  his  principal,  used  the  money  on  his  own  account. 
Bevier  v.  Govell,  87  N.  Y.  50. 

2418.  Ratification  by  a  principal  of  his  agent's  acts  is  only  bind- 
ing when   made  on  full  knowledge  of  the  facts  as  they  actually  exist, 
not  merely  as  the  agent  believed  them  to  exist.     Bank  of  Owensboro* 
v.  Western  Bank,  13  Bush,  Ky.  526. 

2419.  A  principal  is  liable,  as  a  general  rule,  for  such  wrong  of 
his  agent  as  is  committed  in  the  course  of  his  employment  and  for 
the  benefit  of  the  principal ;  and  this,  although  no  express  command  or 
privity  is  proven.     F.  Svgs.  Instn.  v.  Nat.  Bank,  80  N.  Y.  162.     The 
fact  that  an  agent,  intrusted  with  money  of  his  principal  to  invest,  ex- 
acts a  bonus  for  himself,  without  the  knowledge  or  assent  of  his  prin- 
cipal, as  a  condition  of  making  a  loan,  does  not  establish  usury.     The 
principal  is  not   liable  for  such  an  authorized  act  of  the  agent,  in  the 
absence  of  proof  that  he  received  a  portion  of  the  bonus  or  in  some 
form   reaped  a  benefit  or  advantage  from  the  same.      Van  Wyck  v. 

Waiters,  81  N.  Y.  352. 

2420.  An  agent  employed  to  drive  cattle,  to  whom  the  possession 


OF  STANDARD   DECISIONS.  331 

thereof  is  intrusted  by  the  principal,  cannot  deliver  such  possession  to 
a  subagent  appointed  by  himself.      Underwood  v.  Birdsell,  6  Mont.  142^ 

2421.  When  principal   not   chargeable  with  notice  of  fact  which 
came  to  knowledge  of  agent  while  not  engaged  in  business  of  agency. 
A.  S.  Bank  v.  Savery,  82  N.  Y.  291. 

2422.  Where  an  insurance  company  directs  its  agent  not  to  de- 
liver   policies    until    the    whole    premiums  are  paid,   "  as  the  same 
will    stand   charged    to    their   account     until   the  premiums  are   re- 
ceived  "  and  the  agent  did,  nevertheless,  deliver  a   policy  giving   a 
credit   to   the  insurer  and  waiving  a  cash  payment,  Held,  that   the 
company,  it  being  a  stock  company,  was  bound.     Miller  v.  Life  Ins. 
Co.,  12  Wall.  U.  S.  285. 

2423.  Where  an  instrument,  executed  by  an  agent,  shows  on  its- 
face  the  names  of  the  contracting  parties,  the  agent  may  sign  his  own 
name  first  and  add  to  it,  "  agent  for  his  principal,"  or  he  may  sign  the- 
name  of  his  principal  first,  and  add,  by  himself  as  agent.     Smith  V- 
Morse,  9  Wall.  U.  S.  77. 

2424.  It  seems  that  where,  by  the  agreement,  the  agent  is  to  ap- 
ply the  proceeds  of  sales  to  the  payment  of  drafts  so  drawn,  as  they 
mature,  he  may  not  hold  goods  as  security  against  drafts  which  he  can- 
pay  with  funds  of  his  principal  in  his  hands  applicable  to  that  pur- 
pose, and  the  principal,  after  paying  all  drafts  outstanding,  save  an 
amount  no  greater   than  the  proceeds  of  sales  in  the  agent's  hands, 
may  claim  and  take  possession  of  the  goods.     Nagle  v.  McFeeters,  97 
N.  Y.  196. 

2425.  It  seems  that  where,  by  the  agreement,  the  agent  is  to  ap- 
ply the  proceeds  of  sales  to  the  payment  of  drafts  so  drawn,  as  they 
mature,  he  may  not  hold  goods  as  security  against  drafts  which  he  can 
pay  with  funds  of  his  principal  in  his  hands  applicable  to  that  pur- 
pose, and  the  principal,  after  paying  all  drafts  outstanding,  save  an 
amount  no  greater  than  the  proceeds  of  sales  in  the  agent's  handsr 
may  claim  and  take  possession  of  the  goods.      Nagle  v.  McFeeters,  97 
N.  Y.  196. 


PRINCIPAL  AND  SURETY. 

2426.  Where  the  real  estate  of  the  surety  has  been  levied  upon 
and  sold  at  sheriff's  sale,  on   an   execution    issued  upon  a  judgment 
rendered  against  the  principal  and  surety  in  a  delivery  bond,  in  an 
action  thereon  for  a  breach   of  its  conditions,  the  latter  may,  in   an 
action  against  the  former,  recover  as  for  money  paid  to  his  use.     Col' 
lins  v.  Paris,  57  Ind.  151. 

2427.  A  bond  executed  in  blank  by  H.  and  sureties  to  enable  him 
to  raise  $300,  by  loan  from   B.,  was  filled  up  and  delivered,  without 
their  knowledge,  to  C.  and  N.  for  $354.48,  in  payment  of  a  debt, — 
Held,  fraudulent  and  void  as  to  the  sureties.     A  bond  executed  in 
blank,  on  a  specific  purpose,  cannot  be  otherwise  filled  up,  without 
authority  of  the  obligors.     Such  authority  must  be   proved  affirma- 
tively, to  sustain  the  bond.     Hastings,  et  al.  v.  ClendanieL  et  a/.,  2  DeL 
165. 


332  MONROE'S  DIGEST 

2428.  A  cashier  of  a  bank,  by  virtue  of  bis  office,  is  not  author- 
ized to  release  a  surety  upon  a  note  or  bill  belonging  to  the  bank  with- 
out payment.     Merchants'  Bank  v.  Rudolf,  5  Neb.  527. 

2429.  The  fact  that  a  bank  holds  other  securities  for  the  payment 
of  a  note,  to  which  it  might  resort,  is  no  ground  for  the  release  of 
surety.     Statements  made  by  a   cashier  at   casual   interviews,  away 
from  the  bank,  as  to  payments  having  been  made  upon  its  securitiesr 
are  not  binding  upon  the  bank.     Ibid. 

2430.  If  the  cashier,  on  inquiry  by  a  surety  who  is  not  an  officer 
of  the  bank,  state  that  the  note  upon  which  he  is  surety  has  been  paid 
by  the  principal,  the  bank  is  estopped  from  denying  the  truth  of  such 
statement,  when  to  do  so  would  entail  a  loss  upon  the  surety,  which  he 
would  have  guarded  against  had  it  not  been  made.     But  this  rule  is 
not  applicable  where  the  surety  is  one  of  the  directors  of  the  bank,  for 
he  has  the  means  of  knowledge  of  the  true  condition  of  its  affairs,  and 
is  conclusively  presumed  to  know  whether  payment  has  been  made  or 
not.     Ibid. 

2431.  And  where  a  firm  is  surety,  and  one  of  its  members  is  also 
a  member  of  the  board  of  directors  of  the  bank,  all  the  members  of 
such  firm  are  affected  with  the  notice,  which  the  one  who  is  director  is 
presumed  to  have.      Ibid. 

2432.  A   release  of  the  principal  debtor,  against  whom,  with  the 
surety,  a  joint  judgment  has  been  obtained,  operates  as  a  release  of  the 
surety.     Anthony  v.  Capel,  53  Miss.  350. 

2433.  An  agreement  between  the  holder  and  principal  maker  of  a 
note  that  the  latter  may  retain  the  sum  due  for  a  definite  time,  upon 
his  promise  to  pay  usurious  interest,  will  discharge  a  surety  on  said 
note  not  consenting  to  such  contract  of  forbearance,  but  in  the  absence 
of  such   a   contract,  payment   of  the   stipulated  interest  will  not  dis- 
charge the  surety,  even  though,  because  of  such  payment,  the  creditor 
•continues  his  indulgence  to  the  debtor.     The  agreement  to  forbear  for 
&  definite  period,  in  consideration  of  the  payment  of  usurious  interest, 
releases  the  non-consenting  surety.     Brown  \.  Prophit,  53  Miss.  649. 

2434.  In  an  action  upon  an  administration  bond,  under  R.  S.,  ch. 
72,  §  9,  a  judgment  against  the  administrator,  in  favor  of  the  cred- 
itor of  the  intestate,  for  whose  benefit  this  suit  is  brought,  does  not 
•estop  the  sureties  from  showing  that,  prior  to  the  commencement  of 
the  action  in  which  judgment  was  recovered,  the  administrator's  au- 
thority had  become  extinguished.     When  the  plaintiff  relies  upon  such 
judgment,  with  a  demand  and  refusal  to  pay,  or  to  show  property  to 
pay  the  execution,  and  a  return  of  nulla  bona  thereon,  proof  that  the 
administrator's  authority  had  become  extinguished  before  the  creditor 
brought  his  original  suit  will  defeat  the  action  upon  the  bond  against 
the  sureties.     Bourne  v.  Todd,  63  Me.  427. 

2435.  A   surety  cannot  be  held  on  a  bond  which  he  only  signed 
upon  a  condition  that  was  not  performed.     A  bond  does  not  take  effect' 
from  the  signing,  but  only  from  delivery  or  filing.     A  bond  dated  and 
made  to  take  effect  upon  a  week  day  will  protect  an  obligee  who  had 
no  notice  that  it  was  actually  signed  on  Sunday.  Hall,  et  al.  v.  Parker, 
et  al.,  37  Mich.  590. 

2436.  The  execution   of  a   deed   of  trust  by  a  principal  debtor, 
whereby  property  not  subject  to  execution  was  made  liable  for  its  pay- 


OF  STANDARD   DECISIONS.  333 

jnent,  is  a  good  consideration  for  a  promise  to  extend  the  time  for  pay- 
ment of  the  note,  and  such  an  agreement  will  discharge  the  surety. 
Semple,  et  al.  v.  Atkinson,  et  al,  64  Mo.  504  ;  Smarr  v.  Schnitter,  3S 
Mo.  478. 

2437.  P.  and  K.,  a  firm  of  which  defendant  was  a  partner,  exe- 
cuted to  a  State  bank  a  written  undertaking  to  be  "  responsible  for  the 
payment  of  any  sum   not  to  exceed"  $5,000,  which  W.  might  require 
of  said  bank  "  for  legitimate  business  purposes."     In  an  action  upon 
the  guaranty,  it  appeared  that  loans  were  made  which  were  renewed 
from  time  to  time ;  that  defendant  knew  of,  and  assented,  in  writing 
and  orally,  to  the  renewals.     Held,  that  he  was  concluded  thereb}'  from 
claiming  that  the  sureties  were  discharged  by  extension  of  time.     City 
NaCl  Bank  v.  Phelps,  86  N.  Y.  484. 

2438.  The  U.  S.  S.  Co.,  a  corporation  organized  in  this  State,  of 
which  one  W.  was  one  of  the  principal  promoters  and  organizers,  and 
a  large  stockholder,  proposed  to  the  citizens  on  Sandusky,  Ohio,  that 
it  would  erect  a  rolling  mill  at  that  place,  if  they  would  donate  the 
real  estate  and  loan  to  it  $150,000  upon  its  bonds,  secured  by  the  guar- 
anty of  W.  and  other  stockholders.     The  proposition  was  accepted  and 
complied  with,  and  W.,  with  the  other  designated  stockholders,  exe- 
cuted a  joint  guaranty  of  the  payment  of  the  bonds.     The  company 
and  the  guarantors,  including  W.,  thereafter  became  insolvent,  and  the 
latter  executed  a  general  assignment  for  the  benefit  of  creditors,  and 
subsequently  died  before  the  bonds  fell  due.     In  an  action  brought  to- 
compel  an  accounting  on  the  part  of  the  assignees  of  W.,  and  a  dis- 
tribution of  the  funds  in  their  hands,  held,  that  the  liability  upon  the 
guaranty  was  not  extinguished  by  his  death  ;  that  the  guarantors  did 
not  act  as  mere  sureties,  but  secured  an  individual  benefit,  and  were 
under  a  moral  obligation  to  pay  ;  and  so  that  there  was  a  just  founda- 
tion for  a  court  of  equity  to  intervene  and  save  the  obligation  of  the 
guaranty,  and,  therefore,  that  the  holders  of  the  bonds  were  entitled 
to  share  pro  rata  with  the  other  creditors  in  the  assigned  estate.     Rich- 
ardson v.  Draper,  87  N.  Y.  337. 

2439.  The  death  of  a  joint  obligor  onljr  discharges  his  obligation 
in  a  case  where  it  appears  that  he  was  a  mere  surety,  who  received  no- 
benefit  whatever  from  the  joint  obligation.     Richardson  v.  Draper,  87 
N.  Y.  337. 

2440.  It  seems,  that  in  an  action  against  a  principal  and  surety, 
insolvency  of  the  plaintiff  is  a  sufficient  ground  in  equity  for  the 
allowance  of  a  set-off  existing  in  favor  of  the  principal  against  the 
plaintiff;  this  equitable  right  is  strengthened  where  the  principal  is 
also  insolvent.     Coffin  v.  McLean,  80  N.  Y.  560.     The  liability  of  a 
surety  is  limited  to  the  express  terms  of  the  contract;  his  obligation, 
so  far  as  warranted  by  the  terms  employed,  should  be  construed  strictly 
and  favorably  to  him.      Ward  v.  8taU,  81  N.  Y.  406. 

2441.  Bonds  taken  by  an  officer  in  the  course  of  official  duty,  to 
and  for  the  benefit  of  another,  are  not  open  to  the  objections  to  bonds 
taken  by  an  officer,  to  and  for  himself,  which  must  more  close!}1  follow 
the  statutory  requirement ;  in  the  former  case  the  substance  is  looked 
for  more  than  the  form,  although  it  be  a  surety  that  is  to  be  held. 
Gerould  v.  Wilson,  81  N.  Y.  573. 

2442.  Where  the  engagement  of  a  surety  is  for  the  future,  he  can- 


334  MONROE'S  DIGEST  .  . 

not  be  made  liable  for  the  past,  as  to  which  he  has  not  covenanted. 
Thomson  v.  MacGregor,  81  N.  Y.  592. 

2443.  Q.  having  been  appointed  receiver  of  an  insolvent  savings 
bank  executed  his  bond  with   O'D.  as  surety.     Q.  entered  upon  his 
duties,  but  subsequently  by  leave  of  the  court  resigned,  and  a  new  re- 
ceiver was  appointed.     An  order  of  Special  Terra  was  made  settling 
the  accounts  of  Q.,  as  receiver,  which  contained  a  clause  authorizing 
O'D.  to  appeal  on  stipulating  to  be  bound  by  the  decision  thereon. 
•O'D.  appealed  to  the  General  Term  ;  making  the  required  stipulation, 
which  was  accepted  by  the  opposite  party.     The  appeal  was  heard 
without  objection  to  the  right  of  O'D.  to  appeal ;  the  order  appealed 
from  was  affirmed,  with  a  direction  that  O'D.  pay  to  the  new  receiver 
the  amount  of  the  bond.     Held,  that  O'D.  was  entitled  to  appeal  to  this 
•court.     In  re  Rec'rship  of  Guardn.  Savings  Instn.,  78  N.  Y.  408. 

2444.  It  seems  that  one  of  several  original  debtors  may  so  con- 
tract with  the  others  for  their  assumption  and  payment  of  the  common 
debt  as  to  acquire  the  rights  of  suretj7,  upon  notice  of  the  new  arrange- 
ment being  given  to  the  creditor.     Palmer  v.  Purdy,  83  N.  Y.  144. 

2445.  Such  notice,  however,  must  be  definite  and  distinct,  and  so 
given  as  to  fully  and  fairly  apprise  the   creditor  of  the  changed  atti- 
tude of  the  debtor  claiming  the  rights  of  a  surety.     Palmer  v.  Purdy, 
.83  N.  Y.  144. 

2446.  Plaintiff  leased  certain  premises  to  a  firm.     Two  of  the 
partners  subsequently  left  the  firm  and  the  premises,  the  parties  re- 
maining having  by  valid  contract  assumed  and  agreed  to  pay  the  rent 
thereafter  accruing.     In  an  action  brought  against  the  original  mem- 
bers of  the  firm  to  recover  such  rent,  it  appeared  that  plaintiff  was  in- 
formed that  the  two  partners  were  going  out,  and  that  the  others  were 
to  remain  and  would  pay  the  rent ;  but  it  did  not  appear  that  he  was 
advised  of  any  agreement  by  which  those  remaining  were  bound  to 
pay  the  rent,  or  by  which  the  legal  relation  of  the  retiring  members  of 
the  firm  to  the  common  liability  was  changed.     Held,  that  the  evi- 
dence failed  to  establish  the  right  of  the  retiring  partners  to  be  treated 
as  sureties.     Palmer  v.  Purdy,  83  N.  Y.  144. 

2447.  S.  and  0.,  the  defendants  who  continued  the  business,  gave 
their  notes  to  plaintiff  for  rent  in  arrears.     These  were  accepted  by 
him  upon  the  express  stipulation  that  the  liability  of  G.  and  P.,  the 
other  defendants,  should  not  thereby  be  released,  and  with  the  reserva- 
tion of  his  rights  and  remedies  against  them.     Held,  that  the  arrange- 
ment was  not  such  an  extension  as  discharged  G.  and  P.,  even  if  the 
rights  of  sureties  were  accorded  to  them.     Palmer  v.  Purdy,  83  N.  Y. 
144. 

2448.  Upon  an  appeal  from  a  judgment  against  defendant  W.,  in 
an  action  for  the  recovery  of  possession  of  real  property,  he  gave  an 
undertaking  to  stay  proceedings,  in  the  form  prescribed  by  the  Code 
of  Procedure  (§  338),  containing  among  other  things  this  provision, 
that  "  during  the  possession  of  such  property  by  the  appellant  he  will 
not  commit  or  suffer  to  be  committed  any  waste  thereon."     The  judg- 
ment appealed  from  was  affirmed  by  the  General  Term  in  September, 
1865,  and  in  October,  1865,  W.  appealed  to  this  court,  giving  the  requi- 
site undertaking  with  new  sureties.     While  this  appeal  was  pending 
W.,  who  remained  in  possession,  committed  waste.     In  an  action  on 


OF   STANDARD   DECISIONS.  335 

the  undertaking  given  on  appeal  to  the  General  Term,  held,  that  the 
surety  was  liable  for  the  waste  so  committed  ;  that  his  liability  was  not 
limited  to  waste  committed  pending  the  appeal  to  the  Supreme  Court. 
Church  v.  Simmons,  83  N.  Y.  261. 

2449.  It  seems  that  if  after  judgment  of  affirmance  the  defendant 
continued  in  possession  by  permission  of  the  plaintiff  under  an  agree- 
ment constituting  the  relation  of  landlord  and  tenant,  the  obligation 
of  the  surety  would  not  extend  to  subsequent  acts  of  the  tenant. 
Church  v.  Simmons,  83  N.  Y.  281. 

2450.  It  seems  also  that  after  such  judgment  the  surety  would 
have  been  entitled  to  call  upon  the  plaintiff  to  execute  the  judgment 
and  relieve  him  from  liability ;  and  unreasonable  delay  in  proceeding 
after  such  notice  would  discharge  the  sureties  from  liability  as  to  sub- 
sequent acts.     Church  v.  Simmons,  83  N.  Y.  261. 

2451.  It  seems  also  that  the  sureties  in  the  first  undertaking  would 
be  entitled  to  resort  for  their  indemnity  to  the  undertaking  on  the 
second  appeal.     Church  v.  Simmons,  83  N.  Y.  261. 

2452.  Mere  indulgence  by  a  creditor  of  the  principal  debtor  will 
not  discharge  a  surety.     To  work  such  a  discharge  there  must  be  an 
agreement  for  an  extension  made  without  the  consent  of  the  surety, 
•which  precludes  the  creditor  meanwhile  from  enforcing  the  debt  against 
the  principal.     Powers  v.  Silberstein,  108  N.  Y.  169. 


PRIVILEGE. 

2453.  If  the  proceeds  of  the  movables  and  unmortgaged  property 
of  a  succession  do  not  suffice  to  pay  off  its  privileged  debts,  those  debts 
must  be  first  preferred  for  payment  to  the  proceeds  of  its  property  in- 
cumbered  by  the  youngest  mortgage.     The  vendor's  privilege  is  only 
operative  as  to  third  persons  from  the  moment  of  its  registry.     The 
vendor's  privilege  will  not  take  rank  over  a  mortgage  recorded  before 
its  own  registry,  unless  its  own  registry  was  made  on  the  day  of  the 
sale.     To  maintain  his  privilege  on  property  sold  by  him,  as  to  third 
persons,  the  vendor  must  record  the  sale. 

2454.  Seizure  of  property  under  the  execution  of  a  valid  judg- 
ment, gives  a  lien  on  the  property,  superior  to  any  privilege  recorded 
against  it  subsequent  to  the  seizure.     O^Hara  v.  Mrs.  E.  Booth  and 
Connell,  29  La.  817. 


PROFITS. 

2455.  Probable  profits  are  not  a  proper  basis  upon  which  to  esti- 
mate damages,  and  therefore,  under  the  testimony  as  reported  in  this 
case,  nominal  damages  only  can  be  recovered.      Winslow  v.  Lane.  63 
Me.  161. 

2456.  Property  purchased  by  a  wife  on  the  credit  of  her  separate 
estate,  or  of  her  earnings  in  its  management,  is  not  liable  for  the  debts 
of  the  husband.     Silvens  v.  Porter,  74  Penn.  St.  448. 


336  MONROE'S  DIGEST 


PROMISE. 

2457.  The   holders  of  a  note  demanded  payment  from  the  en- 
dorser, who  replied  that  he  "  had  not  expected  to  have  it  to  pay,  and 
that  it  was  impossible  to  pay  it  at  present."     Held,  insufficient  as  a 
promise  to  pay.     Cromer  v.  Platt,  37  Mich.  132. 

2458.  As    long   as  the  creditor  can  maintain  an  action  on  the 
original  promise,  a  new  promise,  without  additional  consideration,  will 
not  support  an  action.     Ogden,  Etc.  v.  Redd,  13  Bush,  Ky.  581. 

2459.  A  promise  made  to  a  debtor,  for  a  valuable  consideration, 
to  pay  his  debt  to  a  third  person,  is  not  a  promise  to  answer  for  the 
debt  of  another  person,  within  the  statute  of  frauds,  which  applies  only 
to  promises  made  to  a  creditor  ;  and  such  promise  made  to  the  debtor 
need  not  be  in  writing.     Centre  v.  McQuesten,  18  Kansas,  476. 

2460.  It  seems  a  promise  to  pay  a  debt  of  another  antecedently 
contracted,  where  the  primary  debt  still  subsists,  is  original  and  so- 
valid  within  the  statute  of  frauds,  although  not  in  writing,  when  it  is 
founded  on  a  new  consideration  moving  to  the  promisor  and  beneficial 
to  him,  and  when  by  the  promise  he  comes  under  an  independent  duty 
of  paying,  irrespective  of  the  liability  of  the  principal  debtor.      White 
v.  Kintoul,  108  N.  Y.  222. 

2461.  If  a  man  promises  one  to  see  him  harmless  should  he  become 
surety  for  a  third  person,  or  should  he  do  anything  else,  this  is  a  mere 
arrangement  between  promisor  and  promisee.     The  promise  is  to  pay 
what  the  person  to  whom  it  is  made  may  become  liable  for — not  "  an- 
other's "  debt,  but  his.     Therefore,  it  is  not  within  the  statute  of  frauds, 
and  is  valid  though  oral.     Aldrich  v.  Ames,  9  Gray,  Mass.  76  ;  Dunn, 
v.  West,  5  B.  Monr.  Ky.  376  ;  Lucas  v.  Chamberlin,  8  B:  Monr.  Ky. 
276 ;  Perley  v.  Spring,  12  Mass.   297  ;  Holmes  v.  Knights,  10  N.  H. 
175  ;  Blount  v.  Hawkins,  19  Ala.  10  :    Perkins  v.  Littlefield,  5  Allen, 
Mass.  370. 


PROMISSORY  NOTES. 

2462.  In  an  action  against  an  indorser  of  a  promissory  note,  the 
defendant  testified  that  he  said  to  the  plaintiff's  agent  that  he  doubted 
if  the  maker  would  pay  the  note ;  that  he  would  like  to  arrange  it  by 
giving  a  new  note,  making  himself  promisor  ;  if  he  would  make  a  new 
note,  he  would  sign  it;  if  he  would  send  up  the  old  note,  he  would 
waive  demand  and  notice  upon  the  back  of  it ;  and  on  cross-examina- 
tion he  testified  that  he  did  not  want  to  have  the  note  protested ;  that 
he  wanted  to  save  the  expense  of  demand  and  notice,  and  though,  if 
the  note  was  protested,  he  would  have  to  pay  it  immediately,  and  that 
•was  the  reason  why  he  offered  to  give  a  new  note.     Held,  that  a  ruling 
that,  as  matter  of  law,  on  this  evidence  the  defendant  waived  demand 
and  notice  was  incorrect.     Batt  v.  Chase,  122  Mass.  262. 

2463.  A  promissory  note  made  by  one  member  of  the  firm,  in  its 
name,  can  be  enforced  against  the  partnership  by  the  holder  thereof,  if 
he  has  no  actual  knowledge,  suspicion  or  cause  of  suspicion,  of  any 


OF  STANDARD  DECISIONS.  337 

fraud  upon  the  partnership  in  the  making  of  the  note.      Blodgett  v. 
Weed,  119  Mass.  215. 

2464.  Possession  of  a  promissory  note  is  prima  facie  evidence 
that  the  bank  is  the  owner  thereof,  and  in  absence  of  proof  to  the  con- 
trary is  conclusive  ;  and  there  is  no  denial  of  the  validity  of  the  note, 
so  it  makes  no  difference  to  the  defendant  who  holds  the  note,  as  long 
as  he  owes  it  to  some  one.     Fletcher  v.  Fletcher,  29  Vt.  98. 

2465.  Action.     A   suit  will  lie  against  the  administrator  of  a  de- 
ceased maker  of  a  promissory  note,  made  jointly  by  two,  during  the 
life  of  the  other  maker.     Thompson  v.  Johnson,  40  N.  J.  Law,  220. 

2466.  A  promissory  note  payable  in  bank,  indorsed  for  value,  be- 
fore maturity,  in  the  usual  course  of  business,  to  a  bona  fide  holder,  is 
not  subject  in  his  hands  to  the  same  defences  as  a  promissory  note  pay- 
able in  bank.     Bremmerman  v.  Jennings,  60  Ind.  175. 

2467.  Upon  demand  and  refusal  of  payment  of  a  promissory  note 
on  the  last  day  of  grace,  a  right  of  action  accrues  at  once  to  the 
holder,  and  the  Statute  of  Limitations  begins  to  run  from  the  date ; 
but  if  there  is  no  demand,  the  cause  of  action  does  not  accrue  until 
the  succeeding  day.     Holland  v.  Clarke,  32  Ark.  697. 

2468.  A  promissory  note  of  a  turnpike  company  is  not  void  be- 
cause made  before  it  has  filed  a  copy  of  its  by-laws,  as  required  by 
statute  with  the  county  recorder.     Forbes  v.  San  Rafael  T.  Co.,  50 
Cal.  340. 

2469.  The  makers  of  a  promissory  note  cannot  annul  a  judgment 
obtained  against  them  on  said  note  by  the  administrator  of  a  succes- 
sion, on  the  ground  that  the  note  did  not  belong  to  the  succession, 
or  on  the  ground  that  the  administrator  was  not  qualified  to  act  as 
such.     Maraist  v.  Guilbeau,  30  La.  1087. 

2470.  The  maker  of  a  promissory  note,  indorsed  in  blank,  and 
acquired  by  the  holder  before  its  maturity,  cannot  resist  the  pa3Tment 
of  the  note  on   the  ground  that  the  holder  is  not  the   real  owner, 
unless   he   alleges   and   shows   that  he  has  good  defences  or   claims 
against  the  real  owner.     An  agent,  in  whose  hands  a  note  has  been 
placed  for  collection,  may  sue  on  it  in  his  own  name.    George  M.  Klein 
v.  Mrs.  Buckner,  et  al,  30  La.  680. 

2471.  Parol  evidence  of  the  indorsement  of  a  promissory  note, 
without  the  production  of  the  note,  held  inadmissible,  though  not  of- 
fered in  order  to  charge  the  indorser.     De  Pusey  v.  Du  Pont,  et  al.,  1 
Del.  Chancery,  77. 

2472.  Before  the  maker  of  a  lost  note,  or  mislaid  negotiable  note, 
which  was  transferred  before  its  maturity,  can  be  made  to  pay  it,  he  is 
entitled  to  be  indemnified  against  its  subsequent  appearance.     Nalle  & 
Cammack  v.  Conrad,  30  La.  503. 

2473.  Negotiable    securities  stolen,  and   afterwards  sold  by  the 
thief,  the  owner  thereof  may  follow  and   claim   the  proceeds  in   the 
hands  of  the  felonious  taker,  or  of  his  assignee,  with  notice,  and  this 
right  continues  and  attaches  to  any  securities  or  property  in  which  the 
proceeds  are  invested  and  identified,  and  the  rights  of  a  bona  fide  pur- 
chaser do  not  intervene.     The  law  will  raise  a  trust  in  inmtum  out  of 
the  transaction,  in  order  that  the  substituted  property  may  be  subjected 
to  the  purposes  of  indemnity  and  recompense.     Newton  v.  Porter,  69 
JS.  Y.  133. 

22 


338  MONROE'S  DIGEST 

2474.  The  debtor  of  a  bank,  of  which  A.  was  cashier,  transferred  a 
negotiable  note,  in  payment  of  his  indebtedness,  to  A.  by  special  in- 
dorsement, and  thereupon  the  bank,  to  enable  A.  to  bring  suit  thereon, 
assigned  its  interest  in  the  note  to  him.     Held,tha,t  A.  might  maintain 
an  action  on  the  note  in  his  own  name  notwithstanding  he  may  be  ac- 
countable to  the  bank  for  the  proceeds  when  collected.      White,  Bon- 
ner  &  Wright  v.  Stanley,  29  Ohio,  433. 

2475.  Such  indorsement  and  transfer  having  been  made  before 
maturity  of  the  note,  the  same  in  the  hands  of  A.  is  not  subject  to  any 
defence  of  which  neither  he  nor  the  bank  had  notice  at  the  date  of  the 
transfer.     Ibid. 

2476.  The  signer  of  a  promissory  note,  which  reads  that  "  we 
promise  in  solido"  etc.,  will  be  held  bound  as  a  solidary  debtor  on 
such  note,  unless  he  proves  that  he  has  been  legally  released  from  his 
obligation.      Wm.  H.  Boullt  v.  Jerome  Sarpy,  et  al.  30  La.  494. 

2477.  To  defeat  the  title  of  an  innocent  purchaser  to  a  note,  on 
the  ground  of  inadequacy  of  the  price  paid  for  it  the  inadequacy  must 
be  such  under  the  circumstances  as  to  impeach  the  good  faith  of  the 
purchase.     Rooker  v.  Rooker,  29  Ohio,  1. 

2478.  When  the  purchaser  of  such  note  receives  it  in  part  pay- 
ment, of  property  sold,  his  title  to  the  note  is  not  affected  by  the  fact 
that  he  retains  the  title  and  possession  of  the  property  sold  as  security 
for  the  unpaid  purchase  money.     Ibid. 

2479.  Where  one  of  several  accommodation  makers  of  a  joint  and 
several  promissory  note  paid  the  same,  and  subsequently  transferred 
and  delivered  it  for  a  valuable  consideration  to  a  third  person,  held, 
that,  although  the  note,  as  an  obligation,  was  extinguished  by  the  pay- 
ment, yet  it  remained  in  the  hands  of  the  maker  who  paid  it,  the  evi- 
dence of  his  cosureties;  and  that  the  delivery  raised  a  legal  presump- 
tion of  an  intent  to  pass,  and  did  pass  this  right  to  the  transferee. 
Dillenbeck  v.  Dygert,  97  N.  Y.  303. 

2480.  A  statement  in  promissory  note  that  it  was  given  for  money 
loaned  is  not  conclusive  ;  it  is  open  to  either  party  to  show  the  actual 
consideration.     Miller  v.  McKenzie,  95  N.  S.  575. 

2481.  A  promissory   note  made  by  D.  payable  to  his  order  at  de- 
fendant's bank  was  for  a  valuable  consideration  indorsed  by  him  and  de- 
livered  to  B.,  at  whose  request  it  was  discounted  by  defendant  upon 
pledge  as  collateral  of  a  $500  government  bond  belonging  to  plaintiff. 
At  about  the  maturity  of  the  note  defendant,  without  the  consent  or 
knowledge  of  B.,  or  plaintiff,  upon  receipt  of  a  new  note,  executed  and 
indorsed  by  D.  for  the  same  amount  which  contained  the  statement "  U. 
S.  bond  $500  collateral  security  "  and  upon  payment  of  the  interest, 
canceled   the  first  note  and  surrendered  it  to  D.     Before  maturity  of 
the  second  note  D.  absconded  ;  it  not  having  been  paid  when  due,  de- 
fendant, without  notice  to  A.  or  plaintiff,  sold  the  bond  in  open  market, 
appropriating  sufficient  of  the  proceeds  to  pay  the  note.     In  action  for 
the  conversion  of  the  bond,  held,  that  defendant  was  liable  ;  that  be- 
fore retaining  the  bond  upon  a  new  contract  it  should  have  required 
the  consent  of  B.    Burnap  v.  Nat.  Bank,  96  N.  Y.  125. 

2482.  L.,  plaintiffs  intestate,  executed,  for  the  accommodation  of 
E.,  a  note  for  $2,180,  payable  to  the  order  of  the  latter,  who  indorsed 
and  negotiated  it,  receiving  the  proceeds.     E.  gave  to  L.,  in  exchange, 


OF   STANDARD   DECISIONS.  339 

his  own  note  for  the  same  amount.  Not  being  able  to  meet  the  note 
so  executed  by  L.  at  maturity,  E.,  in  pursuance  of  an  agreement  be- 
tween them,  paid  to  L.  $1,180,  and  transferred  to  him  a  note  made 
and  indorsed  by  defendants,  for  $1,000  not  tben  due,  whereupon  L.  de- 
livered up  to  E.  his  note  and  paid  the  accommodation  note  when  due, 
which  was  taken  up  and  canceled.  E.  had  received  before  the  transfer 
$420  to  apply  on  the  $1,000  note,  of  which  L.  had  no  notice  or  knowl- 
edge when  he  received  it.  In  an  action  upon  the  note,  held,  that  L. 
was  a  bona  fide  purchaser  for  value  without  notice,  and  so  was  en- 
titled to  be  protected  against  the  equities  of  the  defendants,  and  the 
payment  was  no  defence.  Ward  v.  Howard,  88  N.  Y.  74. 

2483.  A    promissory  note  dated  July  21,  1874,  was  by  its  terms 
made  u  payable  on  demand  after  date  "  at  a  bank,  with  interest  "  after 
maturity."     The  note  was  indorsed  and  transferred  by  the  payee  on 
the  day  of  its  date.     It  was  presented  for  payment  on  the  first  and 
fourth  days  of  February,  1878,  payment  demanded  and  refused,  and  on 
the   fourth  it  was  protested  and  the  indorser  notified.     In  an  action 
upon  the  note,  held,  that  it  was  the  intent  of  the  parties  that  the  note 
should  be  presented  for  payment,  if  not  immediately,  at  least  within  a 
very   short  time ;  and  that  the  delay  in  this  case  was  such  as  to  dis- 
honor the  note,  and   the   iudorser   was   discharged.     Grim  v.  Stark- 
weather, 88  N.  Y.  339. 

2484.  Where  the  transfer  of  a  note  is  upon  the  last  day  of  grace 
it   is  before  maturity ;  the  maker   has  the  whole  of  that  day  within 
•which  to  pay.     Contl  Nat.  Bank  v.   Townsend,  87  N.  Y.  8. 

2485.  In  a  suit  at  law,  by  the  payee  of  a  promissory  note  or  his 
representative,  against   the  maker,  evidence  is  inadmissible  to  show 
that  the  note  was  not  intended  to  be  a  promissory  note,  but  was  given 
as  a  memorandum  not  to  be  enforced  against  the  maker.     Burnes  v 
ticott,  117  U.  S.  582. 

2486.  The  making  of  a  champertous,  and  therefore  under  the  law 
of  the  State  void  and  illegal,  contract  for  the  prosecution  of  a  suit  to 
collect  a  promissory  note,  cannot  be  set  up  in  bar  of  a  recovery  on  the 
note.     Burnes  v.  Scott,  117  U.  S.  582. 

2487.  That  the  maker  of  a  promissory  note  had,  contrary  to  the 
real  fact,  confessed,  in  a  pending  garnishment  proceeding,  the  court, 
held  that  such  confession  should  be  disregarded  in  determining  case, 
•except  as  an  evidence  of  evil  intent,  as  to  the  genuineness  of  the  note 
designed  to  avoid  its  payment.     Ibid. 

2488.  A  municipal  corporation  has  no  power  to  invest  its  obliga- 
tions with  the  character  and  incidents  of  commercial  paper,  so  as  to 
render  them  unassailable  by  defences  to  which  they  would  be  subject 
in  the  hands  of  the  immediate  parties,  unless  such  power  is  conferred 
by  legislative  authority,  either  express  or  clearly  implied.     Knapp  v. 
Mayor  and  C.  of  Hoboken,  39  N.  J.  394. 

2489.  In   the   case   of  bills   of  exchange,   promissory   notes  and 
other  commercial  contracts  a  month  is  always  a  calendar  month.     A 
note,  payable  six  months  after  the  30th  of  May,  is  due  just  six  calendar 
months   and  three  days  thereafter,  the  days  of  grace  being  included, 
bringing  it  to  maturity  consequently  on  the  3d  of  December  succeed- 
ing.    Until   that  day   the  indorsers  of  such  paper  have  not  broken 
their   contract   by   non-payment.     Bank  of  Tennessee  v.  Alexander^ 


340  MONROE'S  DIGEST 

Officer,  et  al.,  59  Tenn.  173  (3  Baxter).     The  demand  must  be  made  on 
the  third  day  of  grace,  on  the  second  if  the  third  be  a  holiday.     Ibid. 

2490.  The  holder  of  negotiable  paper,  taking  it  for  good  consid- 
eration in  the  usual  course  of  business,  without  knowledge  of  facts  im- 
peaching its  validity,  holds  it  by  a  good  title.     It  is  not  enough  to  defeat 
his  recovery  to  show  that  he  took  it  under  circumstances  that  might 
tend  to  excite  suspicion.     Farrell  v.  Lovett,  68  Me.  326. 

2491.  In  an  action  against  the  maker  by  an  indorser  of  a  nego- 
tiable promissory  note,  who  purchased  the  same  for  a  valuable  consid- 
eration before  maturity,  and  without  notice  of  any  fraud  or  infirmity 
as  between  the  original  parties,  the  defendant  is  not  liable  where  it  is- 
shown :     (1)  That  at  the  time  of  signing  and  delivering  the  note  he 
was  induced  by  fraudulent  representations  as  to  the  character  of  the 
paper  to  believe  that  he  was  signing  and  delivering  an    instrument 
other   than  a   promissory   note  ;  (2)    That    his    ignorance  of  the  true 
character  of  the  paper  was  not  attributable  in  whole  or  in  part  to  his- 
own  negligence  in  the  premises.     DeCamp  v.  Hamma,  29  Ohio,  467. 

2492.  A   negotiable  promissory   note,  given  for  a  patent  rightr 
without  the  words  u  given  for  a  patent  right  "  inserted  therein,  as  re- 
quired by  No.  68,  s.   2,  of  the  Acts  of  1872,  is  good  in  the  hands  of  a 
bona  fide  holder  for  value  who  takes  it  before  maturity,  and  without- 
notice  of  what  it  was  given  for.     Fender  v.  Kelley,  48  Vt.  27. 

2493.  In   an  action  by  payee  of  a  joint  and  several  promissory 
note,  payable  on  demand  against  a  maker,  a  plea  that  defendant  had 
signed  as  accommodation  maker,  with  the  following  agreement  written 
on   note,  "  This  note   is  to  be  paid  off  within  three  years  from  date,"" 
and  that  the  plaintiff  had  made  no  demand,  and  the  note  had  not  been 
paid  within  three  years,  is  a  bad  plea.     Lawrence  v.  Walmsley,  CIX. 
797  ;  12  C.  B.  N.  S.  797  (Eng.  Com.  Law). 

2494.  Where  a  negotiable  promissory  note  was  made  payable  upon 
a  condition,  and  the  condition  was  written  below  the  note  on  the  same 
piece   of  paper.     Held,  that  the  note  and  condition  were  parts  of  a 
single  entire  contract,  and  that  the  fraudulent  removal  of  the  condi- 
tion, by  tearing  the  paper,  was  such  a  material  alteration  as  rendered 
the  note  void  in  the  hands  of  a  bona  fide  holder.     Gerrish  v.  Glinesr 
56  N.  H.  9. 

2495.  An   agreement  by  the  indorsee  of  a  promissory  note  for  a 
definite  extension  of  the  time  of  payment,  in  consideration  of  an  agree- 
ment by  the  maker  to  pay  a  greater  rate  of  interest  than   that   pro- 
vided for  in  the  note,  is  binding  upon  them,  and  if  made  without  the  con- 
sent of  the  indorser,  will  release  him  from  all  liability  thereon.     Kittle 
v.  Wilson,  7  Neb.  180. 

2496.  This  defence  is  a  legal  one,  and  should  be  made  by  the  in- 
dorser in  the  action  against  him  on  the  note ;  but  if  he  neglects  to  do 
so,  and  suffer  judgment  to  go  against  him,  he  cannot  afterwards  make 
it  available  as  a  ground  for  enjoining  the  enforcement  of  such  judg- 
ment.    Ibid. 

2497.  It  is  not  necessar}7  that  any  United  States  internal  revenue 
stamps  should  be  affixed  to  a  note,  or  a  mortgage,  in  order  to  make  it 
competent  evidence  in  our  State  courts.     Pargoud  v.  Eichardson,  30 
La.  1286. 

2498.  A  promissory  note,  drawn  for  a  sum  certain  and  made  pay- 


OF   STANDARD   DECISIONS.  341 

able  to  any  person,"  or  order,"  "or  assigns," "  or  bearer,"  is  nego- 
tiable ;  but  if  it  is  payable  to  a  certain  person,  without  words  making 
it  payable  "  to  order,"  "  or  assigns,"  "  or  bearer,"  it  is  not  a  negotiable 
instrument.  Hosford  v.  Stone,  6  Neb.  380. 

2499.  Any    words   in   a  promissory  note,  from  which  it  appears 
that   the  person  making  it  intended  it  to  be  negotiable,  will  give  it  a 
transferable  quality  ;  but  the  words  "  negotiable  and  pa}*able  without 
defalcation   or   discount,"   do  not  of  themselves  make  an  instrument, 
otherwise  non-negotiable,  negotiable.     Ibid. 

2500.  Where  a  note,  though  negotiable,  is  payable  to  order,  and 
unindorsed,  and  is  accidentally  destroyed  by  fire  while  in  the  possession 
of  the   payee,  the  payee  can   maintain  an  action  on  such  lost  instru- 
ment without  first  tendering  or  giving  a  bond  of  indemnity.     Blandin, 
Adm'r  v.  Wade,  20  Kansas,  251. 

2501.  In  a  case  where  a  note,  framed  on  a  printed  blank,  was  com- 
plete at  the  time  it  left  the  hands  of  the  party  sought  to  be  charged, 
tout   was   so  printed  as  to  give  an  apparent  authority  to  fill  a  blank 
space,  occupying  the  same  position   relative  to  the  body  of  the  note 
that  an  interest  clause  usually  does,  and  the  space  left  finished  ample 
room  for  inserting  such  clause,  and  the  space  was  not  filled  in  a  way  to 
attract  observation,  the  Court  strongly  inclined  to  the  opinion  that  the 
•defendant  would  be  bound  to  an  innocent  hold.     Iron  Mountain  Bank 
v.    Murdoch,  62  Mo.  70. 

2502.  If  the  principal  in  a  promissory  note  borrows  monej'  with 
-which  to  pay   the  same,  and,  on  paj'ing  the  sum  due  thereon  the  note 
is  delivered  to  him  and  the  party  advancing  the  money,  and  it  is  after- 
wards arranged  between  them  that  the  note  shall  be  indorsed   by   the 
payee   to  the  party   making  the  loan,  the  surety  not  being  present  or 
consenting  thereto,  this  in  law  will  be  a  payment  of  the  note,  as  to  the 
.surety.      Dare  v.  Humphrey,  et  al.,  29  111.  452. 

2503.  Promissory  note,  given  by  a  vendee  for  the  price  of  a  thing 

which  the  vendor  assumed  to  sell,  but  which  never  had  an  existence, 

.are    utterly   without   consideration,   and   cannot   be   enforced  by  the 

vendor,  or  by  any  one  who  has  acquired  them   after  their  maturity. 

Cummings  v.  Saux,  30  La.  207. 

2504.  Giving  a  note  for  an  antecedent  debt  is  not  a  payment  of  it, 
unless  the  note  be  received  under  an  express  agreement,  or  under  cir- 
cumstances from  which  an  agreement  may  be  fairly  implied  to  treat  it 
as  a  payment,  or  unless  payment  in  fact  result  from  it.     May  &  Sloan 
v.  Gamble,  14  Fla.  467. 

2505.  An  agreement  by  a  debtor  and   creditor  that  the  creditor 
'will,  at  a  future  day,  accept  new  notes  and  securities  in  lieu  of  those 
held,  giving  additional  time  of  payment  of  the  indebtedness,  cannot 
be  enforced  unless  some  valid  consideration  be  received  by,  or  benefit 
or  advantage  has  accrued  thereby,  to  the  creditor.     Ibid. 

2506.  One  who  has  executed  a  promissory  note  in  error,  for  a  debt 
not  due  by  her,  may  legally  resist  the  payment  of  the  note,  so  long  as 
the  note  is  not  in  the  hands  of  an  innocent  third  person,  who  has  taken 
it  for  value  before  its  maturity.     Bridget  Reardon  v.  Daniel  Moriarty, 
et  al.,  30  La.  120. 

2507.  The   maker  or   indorser   of  a  promissory  note  cannot,  as 
against   an   indorser   of    the  same,   in   this    State,   for   value   before 


342  MONROE'S  DIGEST 

maturity  and  without  notice  show  that  the  note,  although  dated  in> 
Boston,  with  intent  that  it  should,  be  a  Massachusetts  contract,  was 
actually  made  in  New  York,  and  on  account  of  illegal  interest,  was 
void  under  the  Usury  Law  of  that  State.  A  promissory  note,  in- 
dorsed "  L.  R.,  receiver,"  binds  him  personally.  Towne  v.  Rice,  122 
Mass.  67. 

2508.  One  who  is  in  fact  the  owner  of  a  note  negotiable  by  in- 
dorsement may  maintain  an  action   upon  it,  although  no  indorsement 
thereof  has  been  made  to  him  ;  and  an  indorsement  subsequent  to  the 
commencement  of  the  action,  made  by  the  payee,  will  relate  back  to- 
and  ratify  a  prior  sale  of  the  note  made  by  an  agent  of  such  pa}Tee. 

Weeks  v.  Medler,  20  Kansas,  57. 

2509.  An  instrument  which,  in  its  terms  and  form,  is  a  negotiable 
promissory  note,  does  not  lose  that  character  because  it  also  recites 
that  an  additional  rate  of  interest  will  be  paid  "  after  due  ;  "  that  the 
maker  has  deposited  certain  certificates  as  collateral  security  for  the 
payment  of  the  note,  and  states  the  terms  upon  which  they  have  been 
deposited  and  upon  which  they  may  be  sold  by  the  holder  on  the  non- 
payment of  the  note.      Towne  v.  Rice,  122  Mass.  67. 

2510.  In  action  on  a  note  and  mortgage,  when  it  is  admitted  that- 
the  plaintiff  is  the  holder  of  the  note,  which  is  indorsed  in  blank  by 
the  payee  thereof,  the  law  will  presume,  in  the  absence  of  any  evi- 
dence to  the  contrary,  that  the  plaintiff  is  an  innocent  and  bona  fide 
holder  for  value,  and  that  it  was  indorsed  to  him  before  due.     Acton  v. 
Harlan,  20  Kansas,  452. 

2511.  The  title  to  negotiable  paper  cannot  be  defeated  by  proof  of 
negligence,  or  want  of  diligence  in  inquiring  into  the  title  or  the  equi- 
ties between  the  parties  thereto.     Nothing  but  fraud  will  defeat  the 
title  thereto.     The  legal  presumption  as  to  an  indorsement  on  negoti- 
able paper  is,  that  it  was  for  value,  and  for  a  proper  purpose;   and* 
where   such   indorsement   purports  to  be   the  act  of  a  corporationr 
through  its  proper  officer,  one  taking  negotiable  paper  so  indorsed,  for 
value,  before  maturity,  is  not  bound  to  inquire  whether  the  indorse- 
ment was  made  in  the  regular  course  of  the  business  of  the  corpora- 
tion, or  was  for  the  accommodation  of  the  officer,  or  was  without  con- 
sideration.    Lafayette  Savings  Bank  v.  St.  Louis  Stoneware  Co.,  4  Mo. 
Court  of  Appeal  (St.  Louis)  276. 

2512.  When  a  negotiable  promissory  note,  due  sixty  days  after 
date,  and  indorsed  by  the  payee  in  blank,  is  put  in  suit  by  a  third  per- 
son, the  production  of  the  note  by  the  plaintiff,  at  the  trial,  is  prima 
facie  evidence  that  he  acquired  it  for  value  before  maturity,  and  with- 
out notice  of  any  fact  going  to  defeat  its  collection.     As  against  him,, 
payment  made  to  payee  will  not  be  a  defence,  without  showing  that  the 
payee  had  possession  of  the  note  at  the  time,  or  was  then  the  owner  of 
it,  or  for  some  other  reason  had  a  right  to  receive  the  money.     Gen- 
erally, payment  made  to  an  agent  who  has  parted  with  possession  of 
the  security  to  his  principal,  is  no  discharge.     Paris,  et  al.  v.  Moer 
Adm'r,  60  Ga.  90. 

2513.  A  promissory  note,  due  from  a  resident  of  Colorado  to  a  resi- 
dent of  California,  is  in  no  legitimate  sense  the  property  of  the  debtorr 
and  is  not  subject  to  taxation  under  the  laws  of  Colorado  (Sess.  Laws, 
1870,  p.  88),  although  the  note  is  secured  by  trust  deed  upon  real  estate 


OF   STANDARD  DECISIONS.  343 

•within  the  jurisdiction  of  the  taxing  power.     Comers  Arapahoe  Co.  v. 
Cutter,  3  Colo.  349. 

2514.  When  the  consideration  for  a  promissory  note  was  expressed 
in  the  note  to  be  the  stock  of  a  railway  corporation,  and  the  director* 
of  the  corporation  subsequently  made  an  illegal  and  unauthorized  in- 
crease in  the  stock  of  the  company,  it  was  held  that  such  illegal  in- 
crease would  constitute  a  defence  to  an  action  upon  the  note.     Follow- 
ing Merrill  v.  Gamble,  46  Iowa,  615  ;    Ante.    Merrill  v.  Beaver,  46 
Iowa,  646. 

2515.  A  note,  or  other  written  evidence  of  indebtedness,  payable 
in  current  funds,  is  not  to  be  regarded  upon  its  face  as  negotiable. 
Haddock  v.  Woods,  46  Iowa,  433. 

2516.  In  an  action  upon  such  paper  it  is  competent  to  show  by 
parol  evidence  the  peculiar  meaning  of  the  term  current  funds,  and 
that   the   parties   understood   it   to  mean  money.     While  the  under- 
standing of  the  parties  respecting  the  condition  of  the  contract  can- 
not be  shown  by  parol,  their  understanding  of  the  meaning  of  the 
words  used  therein  may  be  competent.     Ibid. 

2517.  This  court  has  repeatedly  recognized  the  rule  that  an  ex- 
press agreement  must  be  shown  to  establish  the  fact  that  a  bill  or  note 
of  either  the  debtor  or  a  third  person  was  taken  by  the  creditor  in  pay- 
ment of  a  preexisting  debt.     Brewster  v.  Bours,  8  Cal.  506 ;  Griffith 
v.   Grogan,  12  Cal.  320;    Welch  v.  Allington,  23  Cal.  322  ;  followed  in 
Brown  v.  Olmsted,  50  Cal.  162. 

2518.  If  the  widow  is   executrix   of  the   estate   of  the   deceased 
husband,  and  the  estate  is  community  property,  so  that  she  has  an  in- 
terest in  the  same,  and  she  gives  her  own  note  for  a  debt  of  the  de- 
ceased husband,  which  is  outlawed,  under  the  mistaken  opinion  that  it 
is  not  outlawed,  there  is  a  sufficient  consideration  to  support  the  note. 
Mull  v.  Van  Trees,  50  Cal.  547. 

2519.  The  party  who  purchases  a  promissory  note  from  the  payee 
before  it  is  due,  but  after  the  payee  has  executed  to  the  payor  a  re- 
lease of  the  same,  without  knowledge  of  such  lease,  is  a  bona  fide 
holder,  although  he  purchases  for  less  than  the  face  of  the  note,  and  as 
a  speculation,  and  although  by  the  exercise  of  a  little  diligence  he 
might  have  ascertained  that  the   release  had  been  given.     Schoen  v. 
Houghton,  50  Cal.  528. 

2520.  If  one   party  furnishes    another   one   thousand   dollars  in 
money,  and  such   other  gives  him   his  note  therefor,  with  the  under- 
standing that  the  payor  shall  procure  third  parties  to  assign  to  him- 
self certain  liens  on  land  claimed  by  the  payee,  which  liens  the  payor 
shall   hold   for  the  benefit  of  payee  in  satisfaction  of  the  note,  the 
agreement  amounts  to  an  accord  and  satisfaction,  and  is  a  payment  of 
the  note.      Treadwell  v.  Himmelmann,  50  Cal.  9. 

2521.  A   contemporaneous  written    agreement,  executed   by   the 
payee  of  a  promissory  note,  showing  a  contingency  upon  which  the 
payment  of  the  note  is  to  depend,  is  admissible  in  evidence,  under  the 
general  issue,  in  an  action  on  the  note  by  an  indorser  after  maturity 
against  the  maker.     Munro  v.  King,  3  Colo.  238. 

2522.  In  a  suit  on  a  note  the  affidavit  of  defence  was  that  it  had 
been  given  as  a  donation  to  a  church,  on  condition  that  the  lot  on 
which  it  was  erected  should  be  conveyed  to  the  church,  which  had  not 


344  MONROE'S  DIGEST 

been  done.  The  suit  was  by  the  indorsee  ;  the  affidavit  averred  that 
defendant  "  verily  believes  and  expects  to  prove  that  the  note  has  been 
passed  by  the  payee  to  plaintiffs  to  avoid  making  this  defence,  and 
that  the  plaintiffs  sold  the  same  to  the  use  of  the  payee  without  con- 
sideration as  between  them."  Held,  sufficient  against  the  indorsee. 
Eeznor  v.  Supplee,  81  Penn.  St.  180. 

2523.  Where  two  or  more  notes,  secured  by  a  single  mortgage, 
fall  due  at  different  times,  they  shall  be  paid  out  of  the  mortgage  fund 
in  the  order  of  their  maturity,  unless  a  different  agreement  has  been 
made  between  the  parties,  or   unless  some  paramount  equity  should 
require  a  different  order  of  payment.     Richardson  v  Me  Kim,  20  Kan. 
346-350. 

2524.  The  part}*",  who  was  president  and  treasurer  of  a  local  board 
of  trustees  of  an  insurance  company,  gave  a  certificate  that  the  in- 
surance company  had  on  deposit  with  him  a  certain  number  of  dollars, 
and  signed  it,  "  H.,  president  and  treasurer,  local  board  of  trustees." 
Held,  that  the  certificate,  in  legal  effect,  was  H.'s  promissory  note,  and 
in  a  suit  at  law  against  him  by  the  insurance  company  he  could  show 
in  defence  that  the  contract  of  which  it  formed  a  part  was  rescinded,  or 
that  the  contract  was  of  mutual  stipulations,  and  the  payee  had  not 
performed  on  his  part.     Hart  v.  Life  Ass'n,  54  Ala.  195. 

2525.  The  maker  of  negotiable  paper,  which  is  void  in  the  hands 
of  the  payee,  may,  in  order  to  prevent  its  negotiation,  maintain  a  bill 
in  equity  to  compel  its  surrender  for  cancellation.     Breathuit  v.  Rogers, 
Adm'r  of  McLendon,  32  Ark.  758. 

2526.  A  promissory  note  given  by  the  widow  to  a  creditor  of  the 
deceased  husband,  who  does  not  take  it  in  payment  of  the  debt,  and 
neither  lost  nor  suspended  any  remedy  for  its  collection,  or  receipted 
the  account,  is  without  consideration.     The  fact  that  there  has  been  no 
administration,  and  the  widow  remains  in  possession  of  all  the  real  and 
personal  estate  of  the  husband — the  possession  not  being  derived  from 
the  creditor — forms  no  consideration  for  such  a  promise.      Watson  v. 
Reynolds  &  Stuckey,  54  Ala.  191. 

2527.  A  promissory  note,  which   is  payable  "  on  or  before  three 
years  from  date,"  is  not  due  until  the  three  years  has  expired  ;  and  a 
purchaser  for  value  within  that  time  is  entitled  to  the  same  protection 
as  if  the  note  was  made  payable  three  years  from  date.     Mallison  v. 
Marks,  31  Mich.  425  ;  also,  Helmer  v.  Krolick,  36  Mich.  371. 

252S.  If  a  promissory  note,  signed  by  one  member  of  a  partner- 
ship in  the  firm  name,  is  given  in  payment  of  debts,  some  of  which 
were  contracted  before  another  member  came  into  the  firm,  and  the 
rest  thereafter,  and  an  action  thereon  by  the  pa3Tee  of  the  note  is  de- 
fended by  such  other  member  alone,  the  plaintiff,  in  the  absence  of  evi- 
dence of  actual  fraud  on  his  part,  or  of  knowledge  when  the  party  de- 
fending entered  the  partnership,  is  entitled  to  recover  for  such  debts 
•covered  by  the  note  as  were  contracted  after  he  became  a  member. 
Gould  v.  Belcher,  119  Mass.  257. 

2529.  The  note  sued  on  having  been  transferred  to  plaintiff  as 
collateral  security  for  money  loaned  before  due,  it  was  a  bona  fide 
holder  thereof;  consequently  the  verdict,  finding  for  the  defendant,  on 
a  plea  of  failure  of  consideration,  was  contrary  to  law.  Exchange 
Bank  v.  Butner  &  Edgeworth,  60  Ga.  654. 


OF   STANDARD   DECISIONS.  345 

2530.  Three  promissory  notes,  made  by  the  lessee  paj'able  to  the 
lessor  at  different  dates,  were  given  to  and  accepted  by  him  in  con- 
sideration of  the  surrender  of  a  lease  in  a  building,  which  lease  pro- 
vided that,  in  case  of  the  destruction  of  the  premises  by  fire,  the  rent 
should  be  suspended  or  abated.     The  first  two  notes  were  duly  paid, 
and  before  the  last  note  was  due  the  premises  were  destroyed  by  fire. 
Held,  that  the  consideration  of  the  notes  given  by  the  lessees  was  the 
acceptance  by  the  lessors  of  the  surrender  of  the  lease.     After  this  the 
defendants  had  no  interest  in  the  real  estate,  and  their  liability  upon 
the  notes  was  not  affected  by  the  condition  of  the  premises,  or  by  the 
provisions  of  the  lease,  which  had  ceased  to  exist.     Brooks  v.  Cutter, 
119  Mass.  132. 

2531.  A   protested  draft  is  not  an  obligation  within  the  meaning 
of  the  proviso  of  the  Act  of  16th  of  April,  1850,  which  declares  that 
the  assignees  of  an  insolvent  bank  "  shall  receive  in  payment  of  debts 
due  to  said  bank  its  own  notes  and  obligations  and  the  checks  of  its 
depositors  at  par."     Basehore  v.  Rhodes,  85  Penn.  St.  44. 

2532.  In  an  action  upon  a  promissory  note,  in  which  the  declara- 
tion alleges  that  the  defendant  made  the  note,  and  the  answer  denies 
this,  and  alleges  an  alteration,  proof  of  the  defendant's  signature  is 
prima  facie  evidence  that  the  whole  body  of  the  note  written  over  it 
is  the  act  of  the  defendant,  but  the  burden  of  proof  is  on  the  plaintiff  to 
show  that  the  note  declared  was  the  note  of  the  defendant.     Simpson 

v.  Davis,  119  Mass.  269. 

2533.  The  addition  of  the  name  of  another  joint  maker  to  a  note, 
without  the  knowledge  or  consent  of  the  others,  is  such  a  material 
alteration  as  releases  them  from  liability  thereon.     The  last  signer, 
however,  is  not  released  by  the  discharge  of  his  cosigners,  and  he  is 
liable   for   the  amount   of  the  note.     Hamilton  v.  Hooper,  et  al.,  46 
Iowa,  515. 

2534.  A  promissory  note  being  accepted  by  the  parties,  in  interest, 
in  payment  of  a  debt,  the  taking  of  such  note,  in  pursuance  of  the 
agreement,  merges  the  original  cause  of  action  in  the  note.     If  such 
agreement  was  in  fact  made,  and  note  given  in  pursuance  thereof,  the 
creditor  cannot  rescind  such  contract  for  the  purpose  of  suing  upon  the 
original  cause  of  action  by  simply  returning  the  note.     Kappes,etal. 
v.  Oeo.  E.  White,   1  Bradwell's  111.  App.  Rpts.  280. 

2535.  Where  a  note  provided  for  interest   at  10  per  cent,  per 
annum,  and  the  mortgage  executed  to  receive  it  stipulated  for  "  in- 
terest at  the  rate  of  10  per  cent,  per  annum,  payable  annually,  accord- 
ing to  the  terms  of  the  promissory  note,"  held,  that  the  mortgage  pro- 
vided for  something  respecting  which  the  note  was  silent,  and  would, 
therefore,  govern.     Dobbins  v.  Parker,  et  ux.,  46  Iowa,  357. 

2536.  Defendants  were  partners,  and   K.,  one  of  them,  furnished 
money  to  be  used  in  the  partnership  business,  and  took  a  note  there- 
for, payable  to  himself,  or  order,  and  signed  by  himself  and  the  other 
defendants.     K.'s  wife  became  the  owner  of  said  note,  and  sent  it  to 
plaintiff  by   K.   for   collection,   and   K.   indorsed   it   to   plaintiff  for 
collection    merely.     K.   made   no  defence   to   the   note.     Ormsbee  v. 
Kidder,  et  els.,  48  Vt.  361. 

2537.  If  the  payor  of  a  note  conveys  land  to  the  holder,  by  way 
of  security  for  its  payment,  and  the  holder  afterwards  sells  the  notes 


346  MONROE'S  DIGEST 

to  a  third  person,  and  then  conveys  the  land  to  another  person  to 
secure  his  own  debt,  these  facts  do  not  constitute  a  defence,  if 
such  third  person  sues  the  payor  to  recover  on  the  notes.  Kiel  v.  Beayf 
50  Cal.  61. 

2538.  The  omission  to  insert  in  a  note  given  for  a  patent  right  the 
words  "  Given  for  a  patent  right,"  inserted  therein,  as  required  by 
statute,  does  not  render  the  note  void.     If  the  patent  right  is  good  and 
valid,  and  forms  an  adequate  consideration  for  the  note,  the  maker  can- 
not defend  against  a  transferee  of  the  note  on  the  ground  of  the  omis- 
sion of  those  words.     The  object  of  the  statute  was  to  prevent  the 
transfer  of  such  notes  to  innocent  and  bona  fide  holders.     Streit  v. 

Waugh,  48  Yt.  298. 

2539.  Nor  can  the  maker  defend  upon  the  ground  that  the  plaintiff 
received  the  note  from  another  transferee  in  payment  for  liquor  sold  in 
violation  of  law.     Ibid. 

2540.  It  cannot  render  a  purchaser  of  negotiable  paper  suspicious 
that  the  payee  has  an  interest  in  getting  it  off  his  hands ;  this  fact 
would  not  necessarily  be  known  to  the  purchaser,  or  influence  in  any 
manner    his    action ;    and   in   determining    whether   a   purchaser    i& 
entitled  to  be  considered  a  bona  fide  holder,  it  is  his  bona  fides,  and 
not  that  of  the  payee,  that  is  in  question.     Helmer  v.  Krolick,  36 
Mich.  371. 

2541.  A  promissory  note,  left  blank  as  to  the  amount,  but  perfect 
in  all  other  particulars,  and  providing  for  a  certain  rate  of  interest 
"  per  annum,"  was  executed  by  one  as  principal,  and  by  another  as 
surety,  and  entrusted  by  the  latter  to  the  former  for  delivery  to  the 
payee  ;  whereupon  the  payee's  agent,  with  knowledge  of  the  relations 
of  the  makers  as  principal  and  surety,  filled  up  the  blank,  and  altered 
the  note,  by  direction  of  the  principal,  but  -without  the  knowledge  or 
consent  of  the  surety,  so  as  to  make  it  bear  interest  "  after  maturity." 
Held,  that  such  alteration  relieved  the  surety  from  all  liability  thereon. 
Franklin  L.  Ins.  Go.  v.  Courtney,  60  Ind.  134. 

2542.  A  promissory  note,  given  in  a  gambling  transaction,  is  void  j 
although  negotiable  in  form,  and  in  the  hands  of  an  innocent  holder 
for  value.     Harper  v.  Young,  112  Penn.  419. 

2543.  The  fact  that  a  fraudulent  device  was  superadded  to  induce 
the  giving  of  the  note  does  not  destroy  the  gambling  motive  of  the 
scheme.     Ibid. 

2544.  On  a  collateral  contract  to  pay  a  certain  sum  per  month  as 
interest  on  a  note,  if  it  should  not  be  met  at  maturity,  payee,  who  has 
indorsed    the    note    away,    cannot    recover.      Florence   v.   Drayson, 
LXXXVII.  584 ;  LC.  B.  N.  S.  584  (Eng.  Com.  Law). 

2545.  A.  being  indebted  to  B.,  as  a  surety,  in  order  to  enable  B.'s 
agent  to  raise  money,  and  to  obtain  further  time  on  the  debt  to  B., 
made  his  note  to  the  agent  upon  an  agreement  that  if  he  should  have 
to  pay  the  note,  the  amount  paid  should  be  entered  as  a  credit  on  the 
debt  to  B.     The  agent  assigned  the  note  to  the  plaintiff  for  value ; 
after  the  assignment  his  agency  ceased,  and  the  debt  to  B.  was  paid  by 
the  principal  debtor.     Held,  that  at  the  time  of  the  assignment  there 
was  a  subsisting  consideration,  and  the  subsequent  failure  of  consider- 
ation could  not  affect  the  right  of  the  plaintiff  (the  assignee  of  the 
note.)      Woodruff  v.  Webb,  32  Ark.  612. 


OF   STANDARD   DECISIONS.  347 

2546.  Where,  by  mistake,  note  at  two  months,  dated  January  lstr 
1854,  instead  of  January  1st,  1855,  and  across  the  face  was  writtenr 
"  Due  March  4th,  1855,"  held,  that  the  date  was  1855,  and  the  memo- 
randum  was  as  if  correction  of  error.     Fitch  v.  Jones,  LXXXV.  238  'T 
5  E.  &  B.  238  (Eng.  Com.  Law). 

2547.  Negotiable  paper,  payable  at  a  time  certain,  is  dishonored 
by  mere  non-payment  at  the  time,  and  no  one  is  a  bona  fide  holderr 
without  notice,  who  does  not  take  such  paper  before  maturity.    When 
the  time  of  payment  of  a  negotiable  note  is  extended  by  agreement,  a 
reference  to  which  is  indorsed  upon  the  back,  one  who  takes  it  after  its- 
original  maturity  will  be  subject  to  all  equities  between  the  parties. 
Dryer  v.  Mercantile  Bank,  4  Mo.  Court  of  Appeals  (St.  Louis)  598. 

2548.  If  A.  &  B.  enter  into  partnership,  and  B.  is  to  furnish 
$1,000  as  his  part  of  the  capital,  and  B.  hands  the  money  to  C.  to  de- 
liver to  A.,  and  A.,  when  he  receives  it,  gives  C.  his  promissory  note 
for  it,  the  note  is  given  without  consideration.     Ayer  \.  Duncan,  50- 
Cal.  325. 

2549.  When  the  maker  of  a  non-negotiable  promissory  note  is  at 
the  maturity  thereof  bankrupt,  the  assignee  and  holder  of  the  note 
may  at  once  sue  the  assignor,  without  waiting  for  final  distribution  of 
the  estate  of  the  bankrupt  maker,  the  bankruptcy  of  the  maker  being 
a  breach  of  the  implied  warranty  of  the  assignor.     Lowenstein  v. 
Knopf,  4  Mo.  Ct.  Appeals  (St.  Louis)  594. 

2550.  Where  the  maker  of  a  promissory  note,  payable  to  a  certain 
person  or  bearer,  on  being  inquired  of  by  a  third  person  to  whom  the 
payee  had  offered  after  its  dishonor  to  sell  it,  answered  that  it  was  all 
right,  and  that  he  would  pay  it,  and  thereupon  the  purchase  was  made 
and  the  price  paid,  the  maker  is  estopped  from  setting  up  failure  or 
•want  of  consideration,  or  any  other  equity  existing  between  himself 
and  the  payee,  to  an  action  brought  upon  the  note  by  the  purchaser  or 
his  privies.     Reedy  v.  Brunner  &  Co.,  60  Ga.  107. 

2551.  Where  it  is  claimed  by  a  party  defendant  that  the  date  of 
the  note  in  suit  is  a  mistake.,  and  the  note  on  its  face  is  payable  six 
months  after  date,  and  such  defendant  claims  that  the  note  was  in  fact 
paid  when  due  (which  was  six  months  before  the  date  at  which  it  pur- 
ports to  have  been  executed),  the  testimony  of  an  indorser  of  such 
note  that  he  indorsed  such  note  at  the  place  of  its  date,  in  the  State 
of  Kansas,  at  or  about  the  time  claimed  by  the  maker  as  the  date  of 
execution,  and  that  he  was  absent  from  the  State  during  all  the  time 
for  a  period,  commencing  some  three  months  before  the  date  appearing 
on  the  note,  and  extending  some  five  months  beyond  such  date,  is  com- 
petent as  tending  to  show  a  mistake  in  the  date  of  the  note.     Clary  v. 
Smith,  20  Kansas,  83. 

2552.  In  an  action  upon  a  negotiable  promissory  note,  it  will  de- 
volve upon  the  defendant  to  show,  if  he  so  claims,  that  the  note  was- 
fraudulently  obtained,  or  that  it  was  executed  without  sufficient  con- 
sideration, or  that  it  has  been  paid.     Ecton  v.  Harlan,  20  Kansas,  452, 

2553.  Where  a  person,  possessed  of  the  ordinary  faculties  and 
ability  to  read,  signs  and  delivers  a  negotiable  promissory  note,  with- 
out knowing  it  to  be  such,  but  without  reading  the  same,  having  an 
opportunity  to  do  so,  relying  solely  upon  the  representation  of  the 
payee  that  the  paper  was  an  instrument  other  than  a  note.     Held,  as- 


348  MONKOE'S  DIGEST 

against  a  bona  fide  holder  before  maturity  for  value,  such  maker  will 
not  be  permitted  to  deny  the  due  execution  of  the  note.  Winchell  v. 
Crider,  29  Ohio,  480. 

2554.  A  purchaser  of  negotiable  paper  is  not  put  upon  inquiry  by 
mere  knowledge  that  the  payee  is  engaged  in  selling  intoxicating 
liquors,  to  ascertain  whether  the  consideration  of  the  paper  was  not 
the  unlawful  sale  of  such  liquors.     Bottomley  v.  Goldsmith,  36  Mich. 
27  ;  also,  Paton  v.  Coit,  5  Mich.  505. 

2555.  In  an  action  against  the  maker  by  a  bona  fide  indorsee,  be- 
fore due,  and  for  value,  of  a  negotiable  promissory  note,  the  defendant 
is  liable,  if  guilty  of  negligence  in  the  execution  thereof,  although  he 
did  not  intend  to  sign  a  note,  and  was  induced,  through  fraudulent  rep- 
resentations as  to  its  character,  to  believe  that  the  instrument  executed 
was  one  of  a  different  purport.     Boss  v.  Doland,  29  Ohio.  473. 

2556.  A  person,  who  negligently  signs  and  delivers  to  another  a 
printed  form  of  a  negotiable  promissory  note,  containing  blanks,  with- 
out knowing  it  to  be  such,  is  estopped  as  against  a  subsequent  bona 
fide  holder  for  value,  and  before  due,  from  denying  authority  in  the 
person  to  whom  it  was  delivered  to  fill  the  blanks.     Ibid. 

2557.  Prior  equities  of  antecedent  parties  to  negotiable  paper, 
transferred  in  fraud  of  their  rights,  will  prevail  against  an  indorsee 
who  has  received  the  paper  in  nominal  payment  of  a  precedent  debt, 
where  there  is  no  evidence  of  an  intention  to  receive  it  in  absolute  dis- 
charge and  satisfaction  beyond  that  of  accepting  or  receipting  it  in 
payment,  or  crediting  it  on  account.     Phcenix  Ins.  Co.  v.  Church.  81 
N.  Y.  218. 

2558.  A  petition  against  several  makers  of  a  joint  and  several 
note  more  than  fifteen  years  past  due,  whereon  payments  have  been 
made  within  the  time  of  the  statute,  but  by  whom  paid  not  appearing, 
does  not  show  a  statutory  bar  in   favor  of  any  of  the  defendants. 
Where  the  holder  of  a  note  past  due  receives  from  the  principal  debtor, 
without  the  knowledge  of  the  surety,  a  sum  of  money  greater  than 
the  amount  of  interest  then  due,  and  the  amount  so  received  is  in- 
dorsed on  the  note  as  received  on  account  of  interest,  it  not  appearing 
that  such  indorsement  was  made  by  the  holder,  or  that  he  had  knowl- 
edge that  the  same  was  so  made,  it  is  not  error  to  refuse  to  charge  the 
jury  that  in  law  such  receipt  and  indorsement  constituted  an  agree- 
ment to  extend  the  time  of  payment  of  the  note  for  such  period  of 
time  as  such  sum  would  pay  interest.     Vose  v.  Woodford,  29  Ohio,  245. 

2559.  A.  made  his  promissory  note,  expressed  to  be  for  value  re- 
ceived, whereby  he  promised  to  pay  B.  or  bearer  forty  dollars  profits, 
with  interest,  one  year  from  date.     As  to  A.,  the  note  was  entirely 
without  consideration,  and  was   obtained  from  him  by  fraud.     The 
plaintiff  subsequently  became  the  innocent  bona  fide  purchaser  thereof 
before  maturity.     Held,  that  the  instrument  in  the  hands  of  the  plain- 
tiff was  a  valid,  negotiable  promissory  note,  and  might  be  recovered ; 
that  the  word  u  profits,"  as  to  the  plaintiff,  did  not  express  or  suggest 
a  contingency  or  uncertainty,  but  an  absolute  existing  fund  as  the 
consideration  of  the  promise,  and  on  account  of  which  the  money  was 
to  be  paid,  and  that  the  word,  as  inserted  in  the  note,  was  not  such  an 
apparent  defect  or  infirmity  as  to  put  the   plaintiff  upon   inquiry. 
Matthews  v.  Crosby,  56  N.  H.  21. 


OF  STANDARD   DECISIONS. 

2560.  In  a  suit  brought  against  the  administrator  of  a  deceased 
person  to  recover  the  amount  due  upon  a  promissory  note,  the  defend- 
ant should  be  allowed  to  allege  and  prove  that  the  note  was  made  and 
delivered  to  plaintiff,  without  consideration,  for  the  sole  purpose  of 
protecting  the  property  of  the  deceased  from  his  creditors,  and  that  it 
was  agreed  between  plaintiff  and  said  deceased  at  the  time  of  the  exe- 
cution of  said  note  that  it  should  be  cancelled  whenever  so  desired. 
McCausland  v.  Ralston,  12  Nevada,  195. 

2561.  In  an  action  brought  upon  a  promissory  note  to  recover  of 
one  of  the  indorsers  the  amount  due,  the  indorser  may  be  declared 
against  as  a  guarantor,  and  held  liable  as  such.     Sarbach  v.  Jones,  20 
Kansas,  497. 

2562.  Where  a  promissory  note,  obtained  from  the  promisor  by 
fraud,  has  been  transferred  to  a  third  party  before  its  maturity,  the 
burden  of  proof  is  upon  him  to  show  that  he  purchased  it  for  value  in 
good  faith ;  and  to  determine*  this,  all  the  attendant  circumstances  of 
the  transaction  are  to  be  considered.     Sullivan  v.  Langley,  et  al.,  12fr 
Mass.  437. 

2563.  In  an  action  upon  a  promissory  note  it  was  alleged  on  the 
part  of  defendant,  and  evidence  was  given  tending  to  prove,  that  two 
other  notes  were  executed  for  the  accommodation  of  one  S.,  which  were 
diverted  from  the  purpose  for  which  they  were  executed,  and  were  in- 
dorsed, and  transferred  by  S.  to  G.  in  payment  of  an  antecedent  debtr 
no  new  consideration  being  paid,  and  were  transferred  by  G.  to  plain- 
tiffs, that  in  payment  of  a  balance  due  on  said  notes,  the  note  in  suit 
was  given  which  did  not  have  the  indorsement  of  S.,  and  that  the  orig- 
inal notes  were  surrendered  ;  neither  plaintiffs  nor  G.  had  notice  that 
the  original  notes  were  accommodations  notes.     Held,  that,  assuming 
a  defence  existed  as  to  the  original  notes,  the  surrender  of  the  indorse- 
ment of  S.  upon  acceptance  of  the  new  note  made  the  plaintiffs  bona 
fide  holders  for  value,  and  so  excluded  the  defence ;  and  therefore  a 
charge  that  the  fact  that  none  of  the  plaintiffs  had  knowledge  of  the 
character  of  the  original  notes  was  immaterial,  was  error.     Goodwin 
v.  Conklin,  85  N.  Y.  21. 

2564.  Plaintiff  made  an  oral  contract  with  J.  W.  to  carry  an  in- 
debtedness of  the  latter  for  a  year  upon  his  giving  short  notes  in- 
dorsed by  the  defendant  P.  and  others,  to  be  renewed  from  time  as  they 
fell  due.     In  renewing  one  of  the  notes  so  given,  but  not  indorsed  by 
P.,  a  note  was  presented  to  and  received  by  plaintiff  so  indorsed,  and 
in  renewal  thereof  another  similar  note  was  given  and  received.     In 
an  action  upon  the  last  note,  held,  that  there  was  a  sufficient  considera- 
tion for  the  indorsement  of  P.;  that  the  plaintiff  could  have, sued  the 
note  in  renewal  of  which  P.'s  first  indorsement  was  given,  and  the 
agreement  would  not  have  been  a  defence,  at  most  it  would  only  have 
constituted  a  counterclaim  to  the  extent  of  the  injury  sustained  by  its 
breach ;  and  that  the  canceling  of  that  note  and  extension  of  time  of 
payment  furnished  a  good  consideration  ;  also,  that  it  was  immaterial 
at  whose  request  the  indorsement  by  P.  was  made.     Nat.  Bank  of  G. 
v.  Place,  86  N.  Y.  444. 

2565.  Good  equitable  defence  by  one  maker  of  a  promissory  note 
that  he  was  surety  for  the  other,  of  which  the  holder  had  notice  at  the 
time  the  note  was  made,  and  that  the  holder  has  given  principal  debtor 


350  MONROE'S  DIGEST 

time,  preventing  recovery.  Semble,  that  the  defence  would  be  good,  if 
the  holder  knew  when  he  gave  time  that  the  defendant  was  surety. 
fooley  v.  Harridine,  XC.  431  ;  7  E.  &  B.  431  (Eng.  Cora.  Law). 

2566.  The  contract  which  the  law  implies  from  the  indorsement 
of  a  negotiable  note,  is  as  conclusive  against  parol  testimony  as  though 
it  were  written  out  in  full  above  the  indorser's  signature.     Parol  testi- 
mony is  inadmissible  to  change  a  simple,  unqualified   indorsement, 
whether  in  full  or  in  blank,  into  an  indorsement   without  recourse. 
Doolittle  v.  Ferry,  20  Kansas,  230. 

2567.  Where  an  insolvent  merchant  pressed  by  creditors,  nominally 
sells  to  his  penniless  clerk  a  stock  of  goods  which  the  clerk  and  he 
knows  are  not  paid  for,  and  accepts  in  payment  of  the  goods  a  debt  for 
pretended  wages  he  owes  the  clerk,  and  the  promissory  notes  of  the 
•clerk,  the  transaction  will  be  considered  a  fraudulent  simulation.    Sat- 
iler  &  Go.  v.  Leonard  Marine,  30  La.  355. 

2568.  Partial  payment  made  by  one  debtor  on  a  note,  will  not  sus- 
pend the  running  of  a  statute  of  limitations  in  favor  of  the  other  debt- 
ors thereon,  although  the  party  paying  be  the  principal  debtor,  and  the 
others  only  sureties.     Steele  v.  Souder,  20  Kansas,  39. 

2569.  A  party  knowing  the  signature  to  a  promissory  note  to  be 
forged,   and  intending  to  be  bound  by  it,  acknowledges  it  as  his  own, 
assumes  the  note  as  his  own  and  is  bound  by  it  just  as  if  it  had  been 
originally  signed  by  his  authority.      Wellington  v.  Jackson,  121  Mass. 

157. 

2570.  Note  declared  upon  last  pending  action,  copy  annexed  to  dec- 
laration being  still   in  existence,  and  produced  at  the  trial,  the  trial 
may  proceed  without  establishing  a  copy  in  lieu  of  the  lost  original, 
though  a  plea  of  non  est  factum  be  filed.     The  genuineness  of  the 
-original,  and  the  correctness  of  the  preserved  copty,  may  be  established 
by  parol  evidence.     Jernigan  Ex'x  v.  Carter,  60  Ga.  131. 

2571.  Where  a  promissory  note  is  signed  by  two,  one  being  surety 
for  the  other,  with  the  knowledge  of  the  payee,  but  without  any  agree- 
ment to  that  effect  between  the  payee  and  surety,  time  given  the  princi- 
pal maker  is  a  good  defence  in  an  action  by  payee  against  the  maker 
who  was  surety.     Greenough  v.  McClelland,  C.  V.  422  ;  2  E.  &  E.  422. 
Affirmed  C.  V.  429  ;  2  E.  &  E.  429  (Eng.  Com.  Law). 

2572.  The  alteration  of  the  date  of  a  note  by  the  holder,  without 
the  consent  and  to  the  prejudice  of  the  maker,  is  a  forgery  and  renders 
the  note  void.     Lemay  v.  Williams,  32  Ark.  166. 

2573.  Where  the  note  under  seal,  is  made  with  an  agent  in  his  own 
name,  for  an  undisclosed  principal,   whether  he  describes  himself  as 
Agent  or  not,  either  the  agent  or  principal  may  sue  upon  it.      Ludwig 
v.  Gillepsie,  105  X.  Y.  653. 

2574.  Holder  of  a  note  secured  by  mortgage  may  proceed  at  law 
:and  in  equity  at  same  time  till  he  obtains   satisfaction  of  the  debt. 

Ober  v.  Gallagher,  93  U.  S.  199. 

2575.  A  rent  note  being  made  pa3^able  to  bearer,  the  defendant 
could  not  question  the  plaintiff's  title  thereto,  unless  it  was  shown  to 
be  necessary  to  his  defence.     A  motion  for  non-suit,  on  the  ground 
that  the  evidence  disclosed  that  the  note  had  been  deposited  with  third 
persons  as  collateral  security,  and  the  debt  was  therefore  due  to  them 
"»vaa  properly  overruled.     Greer  v.  Woolfolk,  60  Ga.  623. 


OP   STANDARD  DECISIONS.  351 

2576.  Proof  that  the  consideration  of  a  promissory  note   upon 
•which  suit  is  brought  was  the  unlawful  sale  of  intoxicating  liquors, 
throws  upon  the  plaintiff  the  burden  of  showing  that  he  bought  the 
note   in   good   faith   and   before  it  fell  due.     Paton  v.   Coit,  5  Mich. 
505. 

2577.  Material  alteration,  the  erasure  of  the  word  "  surety  "  after 
the  name  of  the  signers  of  a  note  by  the  payee,  before  indorsement,  is 
&  material  alteration   discharging  the  surety,  even  though  the  note  be 
transferred  for  value  before  maturity.     Lamb  v.  Paine,  et  al.,  46  Iowa, 
550. 

2578.  If  a  transfer   of  title   in   the   note   without  assumption  of 
liability  is  sought  or  desired,  equally  apt  and  well-known  words  are  at 
hand.     "  Without  recourse,"  relieves  the  indorser.     Doolittle  v.  Ferry, 
20  Kansas,  232. 

2579.  A  promissory  note  of  this  form  :     "  One  year  after  date  we 
promise  to  pay  to  the  order  of  A.  B.,  one  thousand  dollars,  value  re- 
ceived,"  and   signed   "  George   Moore,   treasurer   of   Mechanic   Falls 
Dairying  Association  "  is  the  note  of  Moore  and  not  of  the  Association  ; 
and  it  makes  no  difference  that  the  plural  "  we  "  is  used  instead  of  "I." 
Mellon  v.  Moore,  68  Me.  390. 

2580.  To  pass  the  legal  title  by  the  plaintiff  in  execution  there 
must  be  an  indorsement  or  assignment  thereof  in  writing.     Anderson 
Ex'r  v.  Baker,  60  Ga.  599. 

2581.  The  legal  import  of  a  blank  indorsement  upon  a  promissory 
note  cannot  be  varied  by  parol.     Martin  v.  Cole,  3  Colo.  113. 

2582.  In   a    suit  by  a  bank  against  the  maker  of  a  promissory 
note,  a  plea  of  the  general  issue  admits  the  corporate  existence  of  the 
bank  and  its  capacity  to  sue.       Ticonie  Bank  v.  Bagley,  68  Me.  249. 

2583.  The  assignment  and  delivery  of  a  promissory  note  payable 
to  order,  before  maturity,  without  indorsement,  gives  to  the  assignee 
only  the  rights  of  the  payee,  though  it  may  have  been  taken  in  good 
faith  and  for  value.     Allum  v.  Perry,  68  Me.  232. 

2584.  An  averment  in  a  complaint  on  a  promissory  note,  that  a 
certain  sum  "  is  due,  as  principal  and  interest  on  said  note,"  is  equiva- 
lent to  an  averment  that  the  note  remains  unpaid.     Downey  v.  Whit- 
tenberger,  60  Ind.  188. 

2585.  A    verbal    acknowledgment      of,   and    promise   to  pay   a 
promissory  note,  made  by  one  of  its  solidary  makers  before  its  pre- 
scription, will  interrupt  prescription  as  to  all  the  makers.     Boullt  v. 
Sarpy,  30  La.  494. 

2586.  Forbearance   to  one  maker  of  a  promissory  note  does  not 
•discharge  another,  who,  with  knowledge  of  holder,  gave  note  as  accom- 
modation.     Strong  v.  Foster,   LXXXIV.  201  ;    17  C.  B.  201  (Eng. 
•Com.  Law). 

2587.  In  order  to  make  future  services  good  consideration  for  a 
promissory  note  there  must  have  been  a  contract  for  them.     Hulse  v. 
Hulae,  LXXXIV.  711  ;  17  C.  B.  711  (Eng.  Com.  Law). 

2588.  The    mortgage    note  of  a  wife  knowingly  received   by   a 
creditor  of  the  husband,  in  satisfaction,  or  security  of  the  husband's 
debt,  is  in  the  hands  of  such  a  creditor,  utterly  null  and  void.    Claverie 
v.  Gerodias,  30  La.  291 . 

2589.  Note  given  to  creditor  to  induce  him  to  sign  composition 


352  MONROE'S  DIGEST 

deed,  consideration  illegal.     Clay  v.  Ray,  C.XII.  188  ;  17  C.  B.  N.  G. 
188  (Eng.  Com.  Law). 

2590.  One  who  takes  a  promissory  note  as  collateral  security  for 
a  debt  then  created,  and  on  the  faith  thereof,  with  notice  of  no  equities,, 
becomes  a  holder  for  value.     Logan  v.  Smith,  62  Mo.  455. 

2591.  B.  and  C.  being  indebted  to  D.,  B.  gave  a  promissory  note 
to  A.,  the  agent  of  D.,  in  payment  thereof.     When  the  note  came  due 
it  was  not  paid,  and  A.  agreed  to  assume  the  original  debt  and  to  trans- 
fer  the  note  to  C.  on  C's  giving  his  promissory   note  to  A.  for  the 
amount  of  the  debt.     Held,  that  C.'s  note  was  given  for  a  sufficient 
consideration.      Turner  v.  Rogers,  121  Mass.  12. 

2592.  A  creditor  holding  the  mortgage  note  of  a  third  person  a& 
collateral  security  is  compelled  to  credit  the  debt  due  him  with  only 
the  net  sum  he  was  legally  able  to  collect  on  said  note.     Blomn  v. 
Liquidators  of  Hart  &  Hebert,  30  La.  714. 

2593.  A  promissory  note,  given  to  one  creditor  in  consideration  of 
an  agreement  in  fraud  of  the  maker's  other  creditors,  is  void  as  be- 
tween the  parties.     Fay  v.  Fay,  121  Mass.  561. 

2594.  A  promissory  note  is  entitled  to  days  of  grace,  and  suit 
cannot  be  brought  thereon  until  after  they  have  expired.      McCoy  v. 
Babcock,  1  Bradwell's  111.  App.  Repts.  414. 

2595.  In  a  suit  on  a  promissory  note  by  a  bona  fide  indorsee  for 
valuable  consideration,  against  the  maker,  the  simple  fact  that  the  in- 
dorser  was  at  the  time  of  the  indorsement  indebted  to  the  maker,  is  no- 
defence.     Price  v.  Keen,  40  N.  J.  L.  R.  332. 

2596.  A'  promissory  note  which  has  for  its  consideration  the  dis- 
continuance by  the  holder  of  the  note  of  certain  criminal  proceedings 
instituted  by  him  against  a  party,  for  obtaining  money  under  false  pre- 
tences, is  void.      U.  Oganne  v.  Abraham  Haber,  30  La.  1384. 

2597.  One  who  executes  a  promissory  note  in  the  name  of  another, 
without  authority  to  do  so,  becomes  personally  liable  for  the  amount 
of  the  note.     Dowd,  Brown  &  Co.  v.  Bishop  &  Co.,  30.  La.  1178. 

2598.  In  an  action  on  a  promissory  note  payable  to  bearer,  by  one 
alleging  himself  to  be  the  bearer,  owner  and  holder  thereof,  it  is  un- 
necessary to  allege  delivery.     Block  v.  Duncan,  60  Ind.  522. 

2599.  In  order  to  recover  from  the  maker  of  a  promissory  note,  it 
is  not  necessary  to  make  a  demand  at  the  place  of  payment  designated 
in  the  note.     Henry  Renshaw  v.  A.  Keene  Richards,  30  La.  398. 

2600.  Absolute  unconditional  promissory  note  cannot  be  changed 
into  conditional  obligation  by  parol  evidence  in  absence  of  fraud,  acci- 
dent, or  mistake.     Haley  Ex'r  v.  Evans,  60  Ga.  157  ;   also,  Brumby,, 
et  al.  v.  Barnard,  Agent,  60  Ga.  292  ;   also,  Starr  v.  Mayer  &  Co.,  60- 
Ga.  546;  and  Wright  v.  Wilson,  60  Ga.  614. 

2601.  Party  taking  a  promissor}'  note,  with  notice  of  fraud  before 
indorsement,  cannot  recover.     Assignee  of  bill  or  note  without  indorse- 
ment, takes,  subject  to  all  defences.      Whistler  v.  Forster,  248 ;  CYIII. 
14  C.  B.  N.  S.  248  (Eng.  Com.  Law). 

2602.  Promissory  note,  in  consideration  of  forbearance  to  prose- 
cute  charge   of   obtaining   money    under   false  pretences,  is  illegal. 
Clubb  v  Hutson,  CXIV.  414;  18  C.  B.  N.  S.  414  (Eng.  Com.  Law). 

2603.  One  who  takes  a  stolen  negotiable  instrument  bona  fide  and 
for  value  is  entitled  to  recover  on  it,  though  negligent  in  availing  him- 


OF  STANDARD   DECISIONS.  853 

self  of  means  of  knowledge  of  bad  title.  Raphael  v.  Bank  of  England, 
84,  161  ;  17  C.  B.  1861  (Eng.  Com.  Law). 

2604.  The  single  fact  that  a  promissory  note  payable  to  bearer, 
was  transferred  to  the  plaintiff  without  consideration,  or  solely  to  en- 
able him  to  bring  suit  upon  and  collect  it,  constitutes  no  defence  to  the 
action.     Me  Willliams  v.  Bridges,  7  Neb.  419. 

2605.  S.  is  the  owner  of  the  negotiable  note  of  M.  for  $8,000, 
which  he  indorses  and  deposits  with  the  bank  as  collateral  security 
for  a  loan  of  $4,000,  obtained  upon  the  discount  by  the  bank  of  the 
note  of  B.     S.  sells  the   note   to    O.,  and  gives  O.  an   order  on   the 
bank  to  deliver  the   note   to   0.     On  the  same  day,  0.  presents  the 
order  at  the  bank,  and  is  told  that  the  president  of  the  bank  is  absent 
from  town.     Some  days  thereafter  O.  has  an  interview  with  the  presi- 
dent of  the  bank,  and   is  then  informed  that  the  debt  of  S.  is  nearly 
paid,  and  that  he  would  deliver  the  note  to  0.  but  for  the  service  of  an 
attachment  upon  the  bank.     The  debt  of  S.  is  afterwards  paid  in  full. 
Before  the  sale  by  S.  to  0.,  an  attachment  has  been  served  upon  M.,  at 
the  suit  of  a  creditor  of  S. ;  but  of  this  0.  had  no  notice  when  he  pur- 
chased the  note.     After  the  sale  and  notice  to  the  bank  by  O.,  an  at- 
tachment was  served  upon  the  bank  by  another  creditor  of  S.     Held, 
the  sale  by  S.  to  0.  is  valid,  and  he  is  entitled  to  the  note  as  against 
the  attaching  creditors  of   S.     Blair  &  Hoge  v.  Wilson,  28  Grattan 
(Va.)  165. 

2606.  An  alteration  of  a  promissory  note  in  any  material  part 
renders  it  invalid  as  against  a  party  not  consenting  thereto,  even  in 
the  hands  of  an  innocent  purchaser.     Brown  v.  Straw,  6  Neb.  536. 

2607.  After  an  instrument  is  completed  and  delivered,  no  altera- 
tion can  be  made  therein,  except  by  consent ;  an  alteration  of  the  date, 

whether  it  hasten  or  delay  the  time  of  payment,  is  a  material  altera- 
tion, and  if  made  without  the  consent  of  the  party  sought  to  be 
charged,  extinguishes  his  liability.  Ibid. 

2608.  Where  a  party  contracts  to  pay  18  per  cent,  interest  upon 
a  promissory  note  at  the  time  of  its  execution  and  delivery,  the  con- 
tract will  be  tainted  with  usury,  although  the  rate  of  interest  is  not 
expressed  in  the  note.     Keim  &  Co.  v.  Avery,  7  Neb.  54. 

2609.  A   surety  may  plead  a  defence  to  a  promissory  note  that 
usurious  interest  was  agreed  upon  by  the  parties  at  the  time  of  the 
execution  of  the  note.     Ibid. 

2610.  The  defendant  being  the  payee  of  a  negotiable  promissory 
note,  upon  which  his  action  is  brought,  his  relation  is  such  that  lie 
cannot  in  law  be  held  to  be  the  maker  of  such  note,  even  though  his 
indorsement  was  for  the  purpose  of  giving  credit  to  the  note.     Barn- 
ard v.  Gaslin,  23  Minn.  192. 

2611.  That  the  indorsement  by  the  payee  of  a  negotiable  promis- 
sory note  amounts  in  law  to  a  contract  on  the  part  of  such  indorser, 
in  which  he  undertakes  to  pay  the  note  in  case  the  maker  fails  to  pay 
at  maturity,  and  of  which  failure  he  has  due  notice ;  and  his  liability 
in  this  regard  cannot  be  varied  or  qualified  by  a  parol  agreement  or 
understanding  simultaneous  with  that  of  the  indorsement ;  and  hence, 
parol  evidence  will  not  be  received  to  vary  this  well  recognized  legal 
contract.     Ibid. 

2612.  G.  executed  a  promissory  note  to  a  railway  company  to  aid 
23 


354  MONEOE'S  DIGEST 

in  the  construction  of  a  road  between  two  points  named  in  the  note. 
At  the  time  of  its  execution  it  was  understood  that  the  note,  with 
others  of  like  purport,  if  they  reached  a  certain  amount,  was  to  be 
turned  over  to  another  company,  which  was  to  construct  the  road ; 
they  did  not  reach  the  amount,  and  the  road  was  constructed  by 
plaintiff,  who  was  the  assignee  of  the  payee  of  the  note.  Held,  that 
upon  compliance  with  the  other  conditions  of  the  note,  it  was  col- 
lectible by  plaintiff.  It  being  stipulated  in  the  note  that  the  con- 
sideration therefor  was  to  be  capital  stock  of  the  railway  company, 
which  was  to  be  limited  to  a  certain  specific  amount,  an  illegal  in- 
crease thereof  would  constitute  a  valid  defence  to  the  note.  Merrill 
v.  Gamble,  46  Iowa,  615. 

2613.  A  material  alteration  in  the  terms  or  condition  of  a  note,  or 
other  commercial  paper,  made  by  the  holder  thereof,  with  a  fraudu- 
lent intent,  will  defeat  recovery  thereon.     Robinson  v.  Heed,  et  al.,  46 
Iowa,  219. 

2614.  A    surety  contracts  to  pay  the  note,  while  the  guarantor 
undertakes   to   pay  it    upon   condition  that  certain  steps  are  taken, 
and   any  writing    upon  the  note,  therefore,  which  seeks  to  render  a 
guarantor  a  surety  is  a  material  alteration.     Ibid. 

2615.  Where    the   alteration  is  established,  the    holder  has  the 
burden  to  show  that  it  was  made  innocently,  for  a  proper  purpose,  or 
by  a  stranger,  and  in  the  absence  of  such  proof  it  will  be  presumed 
to  have  been  fraudulently  made.     Ibid. 

2616.  The    party  guilty  of  the  fraudulent  alteration  cannot  by 
removing  it  recover  the  right  of  action  which  he  has  lost  by  his  fraud. 
Ibid. 

2617.  When  a  renewal  note  has  been  given,  with  an  understand- 
ing that  the  original  note  shall  be  surrendered,  if  the  renewal  note  is 
not  paid  at  maturity,  suit  may  be  commenced  thereon ;  and  the  mere 
fact  that  the  original  note  had  not  been  surrendered  at  the  commence- 
ment of  the  action  is  no  defence,  when  it  appears  that  plaintiff  has 
always  held  possession  thereof,  that  its  surrender  has  never  been  de- 
manded, and  when  it  is  produced  on  the  trial  and  tendered  to  defend- 
ant.    The  fact  that  the  defendant,  at  the  maturity  of  the  renewal 
note,  went  to  the  bank,  where  it  was  deposited  for  collection,  for  the 
purpose  of  paying  it,  and  refused  to  pay  because  the  original  note 
was  not  there  to  be  surrendered,  is  no  defence  to  the  action,  when  it  is 
shown  that  the  money  was  afterwards  demanded  of  him,  and  that  he 
refused  to  pay  on  other  grounds,  and  that  plaintiff  was  at  all  times 
ready  and  willing  to  surrender  the  original  on  payment  of  the  renewal 
note.     Fleirs,  et  al.  v.  He.llery,  4  Mo.  Ct.  Appeals  (St.  Louis)  596. 

2618.  In  an  action  by  an  indorsee  against  his  inrlorser  on  a  prom- 
issory note,  which  on  its  face  was  executed  and  payable  at  a  bank  in 
another  State,  the  maker  of  which  was  alleged  to  be  a  non-resident 
of  this  State,  all  the  evidence  introduced  was  the  note,  the  indorse- 
ment thereof  and  a  protest.     Held,  on  motion  for  a  new  trial,  that  the 
evidence  is  insufficient  to  sustain  a  verdict  for  the  plaintiff.     Held, 
also,  that   the    indorsement,  in  the  absence  of  evidence  to  the  con- 
trary, is  presumed  to  have  been  made  at  the  time  and  place  of  the 
execution  of  the  note,  and  that  the  note  and  indorsement  are  gov- 
erned by  the  law  of  that  place.     Held,  also,  it  being  presumed  that 


OF  STANDARD   DECISIONS.  355 

the  common  law  prevails  in  that  place,  and  promissory  notes  not  being 
governed  at  common  law  by  the  law  merchant,  that  the  note  in  suit 
is  not  so  governed.  Held,  also,  that  the  statute  of  such  State  should 
be  pleaded  and  proved,  as  courts  of  this  State  do  not  judicially  know 
the  law  there  in  force.  Held,  also,  that  the  evidence  shows  no  dili- 
gence, and  no  excuse  for  a  failure  to  use  due  diligence  in  proceeding 
against  the  maker  necessary  to  bind  the  indorser  of  a  note  not  payable 
in  bank.  Patterson  v.  Garrell,  60  Ind.  128. 

2619.  It  is  no  defence  to  a  suit  against  the  maker  of  a  negotiable 
promissory  note  by  a  national  bank,  which  has  discounted  the  note  for 
an  indorser,  that  since  the  commencement  of  the  suit  the  indorser  has 
paid  the  bank  and  taken  up  the  note,  and  taken  an  assignment  of  the 
suit,  and  is  prosecuting  it  for  his  own  benefit.     Such  bank  has  power 
to  free  itself  from  litigation,  and  realize  its  money  on  a  protested  note 
by  such  an  arrangement.  • 

2620.  Where  there  is  no  evidence  of  fraud  or  oppression,  or  any 
corrupt  or  improper  motive,  the  owner  of  indorsed  negotiable  paper 
may  maintain  suit  upon  it  against  prior  parties  in  the  name  of  any  per- 
son or  party,  capable  of  giving  the  defendant  a  discharge,  who  will 
consent  to  the  use  of  his  name  for  that  purpose.     It  is  not  essential 
that  a  suit  upon  such  paper  should  be  brought  or  prosecuted  in  the 
name  of  one  who  has  a  personal  interest  in  the  enforcement  of  the 
pi-omise.     While  the  right  of  the  defendant  to  assert  such  legal  and 
equitable  defences  in  a  suit  brought  in  the  name  of  a  nominal  plaintiff, 
as  he  could  maintain  were  the  suit  in  the  name  of  the  real  owner,  will 
always  be  preserved,  there  being  nothing  in  the  case  to  show  that  the 
indorser,  or  his  executor,  had  he  taken  up  the  note  at  its  inaturit}',. 
•could  not  have  maintained  an  action  upon  it  in  his  own  name.     Held, 
that  he  may  lawfully  get  the  benefit  of  any  attachment  made  by  the 
bank  by  procuring  their  consent  to  the  prosecution  of  the  suit  in  the 
name  of  the  bank.      Ticonie  Bank  v.  Bagley,  68  Me.  249. 

2621.  Under  our  Statute  the  title  to  a  promissory  note,  whether 
payable  to  order  or  assigns  or  not,  is  transferred  by  indorsement ;  but 
the  title  to  a  promissory  note  payable  to  bearer  is  vested  in  each  suc- 
cessive holder  by  the  original  promise  of  the  maker  to  the  bearer,  and 
not  by  the  assignment  of  the  promise,  Section  2228  of  the  Code  of  1871 
construed,  which  provides  that  "  all  promissory  notes,  and  other  writ- 
ings for  the  payment  of  money  or  any  other  thing,  may  be  assigned  by 
indorsement,  whether  the  same  be  payable  to  order  or  assigns  or  not ; 
*     *     *     and  in  all  actions  on  any  such  assigned  promissory  note,  bill 
of  exchange,  or  other  writing  for  the  payment  of  money  or  other  thing, 
the  defendant  shall  be  allowed  the  benefit  of  all  want  of  lawful  consid- 
eration, failure  of  consideration,  pa3*ments,  discounts,  and  sets-off  made, 
had,  or  possessed  against  the  same  previous  to  notice  of  assignment, 
in  the  same  manner  as  though  the  suit  had  been  brought  by  the  obligee 
or  payee."     Held,  (1)  that  the  above  statute  applies  as  well  to  indorse- 
ments in  blank  as  to  special  indorsements;  (2)  that  it  refers  to  assign- 
ments made  in  the  due  course  of  business,  for  value,  and  before  ma- 
turity ;  (3)  that  it  only  changes  law  merchant  so  far  as  to  allow  the 
promisee  to  make  any  defences  existing  before  notice  of  assignment 
against  a  remote  holder,  by  indorsement,  before  maturity,  which  he 
could  have  made  against  the  payee.    Etheridge  v.  Gallagher,  55  Miss.  458- 


356  MONROE'S  DIGEST 

2622.  E.  and  wife  sold  a  lot  to  C.,  and  took  in  payment  a  promis- 
sory note  payable  to  their  order,  which  was  transferred  by  indorse- 
ment in  blank  to  W.  F.  E.,  and  by  him  transferred  for  value,  after  due, 
to  G.     A  bill  was  filed  by  G.  to  subject  the  lot  sold  by  E.  and  wife  to- 
C.  to  the  payment  of  the  note  held  by  him,  E.  and  wife  filed  a  cross- 
bill, alleging  that  the  consideration  for  which  the  note  was  transferred 
to  W.  F.  E.  had  failed,  and  the  latter  was  insolvent,  claiming  that  E. 
and  wife  had  a  superior  right  to  the  note,  and  that  the  lot  should  be 
sold  for  their  benefit.     G.  demurred  to  the  cross-bill  for  want  of  equity  r 
and  his  demurrer  was  sustained  by  the  Court.     Held,  that  the  action 
of  the  Court  was  correct.     Etheridge  v.  Gallagher,  55  Miss.  458. 

2623.  Our  Statute  requires  those  in  an  action  on  a  promissory 
note  or  bill  of  exchange  all  the  parties  thereto  resident  in  the  State 
shall  be  sued  together.     If  it  appears  on  the  face  of  the  declaration  < 
that  any  such  party  is  omitted  in  the  action,  the  omission  may  be  taken, 
advantage  of  by  a  plea  in  abatement.     In  an  action  upon  a  promissory 
note  or  bill  of  exchange,  it  is  too  late  after  trial  to  object,  for  the  first 
time,  that  all  the  parties  were  not  sued  in  the  same  action.     Ibid. 

2624.  The  defendants  were  the  banker  of  both  the  plaintiff  and 
one  E.,  and  E.  having  given  a  note  payable  to  the  plaintiff  at  the  de- 
fendants' bank,  the  plaintiff,  about  two  weeks  before  its  maturity,  left 
it  with  the  defendants  for  collection,  and  to  be  protested  if  not  paid. 
On  December  4th,  the  day  of  its  maturity,  the  ledger  keeper  debited 
E.'s  account  and  credited  the  plaintiff'  with  the  amount  of  the  note. 
Subsequently  the  manager,  on  the  ground  that  the  entry  had  been  made 
by  the  clerk  by  mistake  and  without  authority — as  E.'s  account  was- 
then  overdrawn — caused  the  entry  to  be  reversed,  and  refused  to  pay 
plaintiff  the  amount  of  it.     E.  stated  that  he  always  gave  authority  to 
pay  each  particular  note,  which  he  did  not  do  here ;  and  the  manager 
stated  that  without  such  authority  it  was  not  the  custom  of  the  bank 
to  pay  any  note.     Held,  that  the  plaintiff  was  entitled  to  recover  the 
amount  of  the  note  from  the  bank.     That  by  the  general  law  the  plain- 
tiff by  making  the  note  payable  at  defendants'  bank,  authorized  them 
to  pay  it ;  and  that  the  act  of  the  ledger  keeper  in  charging  it  to  E.'s- 
account  and  crediting  it  to  the  plaintiff  in  his  account  and  pass  bookr 
amounted  to  a  payment  of  the  note,  and  was  irrevocable.    Nightingale  v. 
City  Bank,  26  Upper  Canada  Com.  Pleas,  74. 

2625.  Promissory  note,  signed  "  U.  S.  Manfg.  Co.,  George  H.  Foxr 
treasurer."     The  plaintiffs  case  depended  entirely  on  the  validitj^  of 
the  promissory  note,  which  Fox  had  assumed  to  give  in  the  character 
and  capacity  of  treasurer  of  the  defendant  company.     Whether  he  had 
authority  to  do  so  was  a  vital  question.     F.  was  called  by  the  defend- 
ant  as   a  witness,  and   asked    him,  against    the   plaintiffs  objection r 
whether  or  not  he  had  authority  to  make  this  note  as  treasurer  of  the 
company.     Held,  that  the  question  was  inadmissible.     All  that  could 
properly  be  obtained  from  him  were  the  facts,  by  which  the  inference 
of  authority  was  to  be  supported  or  repelled  ;  and  it  was  for  the  counsel 
to  argue,  and  for  the  jury  to  find,  under  the  instructions  of  the  Courtr 
whether  the  facts  so  given  proved  that  he  had  the  authority,  which  he 
denied.     The  question  is  fully  discussed  in  Short  Mountain  Coal  Co.  v. 
Hardy,  114  Mass.  197.     The  Court  held,  that  a  declaration  of  an  agent 
to  a  third  person  is  inadmissible  in  behalf  of  the  principal  to  prove  that 


OF   STANDARD   DECISIONS.  357 

the  person  was  not  also  his  agent,  or  to  support  the  agent's  declarai- 
tion. 

2626.  A  promissory  note,  made  by  one  of  two  members  of  a  firm, 
in  the  hands  of  a  bona  fide  holder  for  value,  although  not  made  in  the 
partnership  business,  and  although  the  other  partners  did  not  know  of 
the  making  of  the  note.     The  note  is  presumptive  evidence  that  it  is 
valid  business  paper,  and  was  given  for  a  debt  due  from  the  makers  to 
the  payee.     First  National  Bank  v.  Morgan,  73  N.  Y.  Ap.  593. 

2627.  Where  a  joint  and  several  promissory  note  is  signed  by 
three  persons,  as  makers,  to  the  signature  of  the  last  signer,  the  word 
•"  surety  "  being  added,  the  presumption  is  that  he  is  surety  for  the 
other  two;  this  presumption,  however,  is  not  conclusive.     It  maybe 
shown  that  he  was  in  fact  surety  for  only  one,  and  that  the  other  signer 
was  also  surety.     Sales  v.  Sims,  73  N.  Y.  Ap.  552. 

2628.  The  possessor  of  negotiable  paper  has  no  better,  or  other 
title  to  the  proceeds  arising  from  the  sale  thereof,  than  to  the  paper 
itself,  and  if  he  has  no  title  to  the  latter,  he  can  be  compelled  to  ac- 
count to  the  true  owner  for  the  proceeds.     Comstock  v.  Hier,  73  N.  Y. 
Ap.  269. 

2629.  Testimony  that  such  person  was  not  an  agent,  because  if 
the  inquiry  was  whether  he  had  an  express  authority,  it  was  an  in- 
quiry concerning  an  immaterial  matter  ;  and  if  it  was  whether  he  had 
an  implied  authority,  it  was  an  inquiry  as  to  an  inference  to  be  drawn 
by  the  jury  from  the  facts  in  the  case.     Providence  Tool  Co.  v.  United 
States  Mfg.  Co.,  120  Mass.  35. 

2630.  On  the  9th  September,  1875,  defendant  indorsed  a  prom- 
issory note  made  by  S.  and  C.,  bearing  that  date,  and  payable  to  him 
four  months  after  date  at  the  plaintiffs'  branch  at  Ottawa,  but  without 
any  amount  being  filled  in.     On  the  same  day  C.  deposited  it  with  the 
plaintiffs,  authorizing  them  to  fill  it  in  for  the  amount  of  S.  and  C.'s 
then  due  paper,  as  also  for  other  paper  falling  due  before  the  22d  Oc- 
tober.    On  the  21st  October  the  plaintiffs  filled  in  the  note  for  $4,835.84, 
•which  included  defendants'  then  due  paper,  a  sum  of  $2,000  coming  due 
•on  the  following  day,  and  $2.94,  the  amount  of  the  stamps  which  were 
there  affixed.     The  stamps  so  affixed  were  sufficient  to  cover  double 
-duty,  and  were  obliterated  by  writing  across  them  the  date  on  which 
they  were  so  fixed,  namely,  21st  October,  1875.     Held,  that  defendant, 
by  so  indorsing  the  note,  authorized  plaintiffs,  as  bona  fide  holders  for 
value,  to  fill  in  the  amount,  and  to  affix  and  cancel  the  requisite  stamps 
in  the  mode  required  by  law ;  and  that  the  note  then  become  a  com- 
pleted note,  but  speaking  from  its  original  date,  from  which  the  four 
months  would  be  counted.     By  37  Vic.,  ch.  47,  §  3,  D.,  it  is  provided 
that  in  case  a  bank  making  or  becoming  the  holder  of  a  note  not  duly 
.stamped,  knowing  the  same,  and  not  immediately  affixing  and  cancel- 
ing the  proper  stamps,  within  the  meaning  of  31  Vic.,  ch.  9,  it  should 
not  only  forfeit  a  penalty  of  $500,  but  be   unable  to  recover  on  such 
note,  or  make  it  available  for  any  purpose  whatever,  and  that  it  should 
be  of  no  effect  in  law  or  equity.     Held,  that  the  stamps  here  were  not 
properly  canceled  ;  for  if  affixed  as  agents  of  the  makers,  which  the 
including  them  in  the  amount  of  the  note  was  evidence  of,  then,  under 
§  4  of  31  Vic.,  ch.  9,  D.,  the  date  of  the  obliteration  must  accord  with 
ihat  of  the  note  ;  whereas,  if  looked  upon  as  subsequent  holders,  and  as 


358  MONROE'S  DIGEST 

affixing  double  duty,  then,  under  section  12,  as  substituted  by  37  Vic.r 
ch.  47,  §  2, the  initials  or  name  as  well  as  the  date  are  required.  Semble, 
that  the  privileges  accorded  by  the  latter  part  of  this  substituted,  sec- 
tion 12,  to  holders,  who,  from  error  or  mistake,  do  not  at  the  proper 
time  affix  the  double  duty,  does  not  apply  to  banks,  etc.  Le  Banquer 
Nationals  v.  Sparks,  27  Upper  Canada  Com.  Pleas,  820. 

2631.  PlaintitF  held  a  note,  whereon  N.  was  principal,  and  defend- 
ants  and  others  were  sureties.     Plaintiff  and  N.  procured  defendant 
W.  to  sign  another  note,  agreeing  at  the  time  that  it  should  not' be 
used   except   to  take  up  the  former  note,  nor  unless  all  the  signers 
of  the  former  note  signed  it.     W.  was  induced  by  this  agreement  to 
sign   said   last  mentioned  note,   which  plaintiff  well   knew,  and   also 
knew  that  the  note  was  to  be  presented  to  defendant  S.  by  N.,  the 
principal  thereon,  with  W.'s  name  on  it,  as  an  inducement  for  him  to- 
sign  it,  and  that  S.  was  thereby  induced  to  sign  ;  and  plaintiff  took  the 
note,  knowing  S.  had  been  so  induced   to  sign,  and  advanced  money 
thereon  to  N.,  instead  of  taking  it  in  payment  of  the  former  note,  as- 
agreed.     Held,  that   the   defendants'  relations   as   sureties,  and   said 
agreement,  might  be  shown  by  parol,  and  constituted  a  defence  to  the 
note.     Harrington  v.  Wright,  et  aL,  48  Yt.  427. 

2632.  The  promissory  note  declared  on  was  dated  July  1,  1869, 
for  $1,000,  payable  on  demand.     The  evidence  at  the  trial  was  that  the 
plaintitf  lent  the  defendant  $1,000  in  July,  in  1868  or  1869,  and  at  the 
same  time  received  from  him  a  note,  which,  there  being  no  evidence 
when  it  was  payable,  might  be  presumed  to  be  payable  on  demand  -r 
and  that  this  note  had  been  lost,  and  could  not  be  produced.     This 
evidence  was  sufficient,  in  the  absence  of  evidence  that  any  other  note 
of  this  amount  was  ever  given   by  the  defendant  to  the  plaintiff,  to 
identify  the  note  in  suit,  and  to  warrant  the  jury  in  returning  a  ver- 
dict for  the  plaintiff,  and  the  court  in  rendering  judgment  in  her  favor 
upon  her  filing  a  sufficient  bond  of  indemnity.     The  assignment  of  all 
the  payee's  right  in  the  note,  without  any  indorsement,  did  not  prevent 
the  maintenance  of  an  action  upon  the  note  in  the  name  of  the  payee. 
Tucker  v.  Tucker,  119  Mass.  79;  also,  Clark  v.  Houghton,  12  Gray, 
38 ;  Goddard  v.  Sawyer,  9  Allen,  78  ;  Me  Gregory  v.  Me  Gregory,  107 
Mass.  543  ;  Nichols  v.  Allen,  112  Mass.  23.     As  to  assignment,  referred 
to:     Foss  v.  Nutting,  14  Gray,  484;  Cook  v.  Fellows,  1  Johns.  143; 
Smalley  v.   Wight,  44  Maine,  442. 

2633.  In  an  action  on  a  promissory  note  against  the  maker,  the 
defence  was  that  the  note  in  suit  was  signed  by  the  defendants  at  the 
request  and  for  the  accommodation  of  the  0.  R.  Co.,  the  payee,  and  of 
W.  H.  and  P.,  the  indorsers,  who  were  officers  or  stockholders  of  said 
company,  and  that  the  note  had  been  paid  by  the  indorsers.     The  evi- 
dence tended  to  show  that  after  the  note  matured  G.,  acting  for  the  in- 
dorsers, made  an  arrangement  with  the  plaintiff  corporation,  by  which 
he  was  to  give  it  their  note  for  the  same  amount ;  that  he  gave  it  such 
note,  signed  by  W.  H.  and  P.,  and  the  note  in  the  suit  was  delivered  to 
him.     The  principal  question  at  the  trial  was,  whether  the  new  note 
was  given  in  payment  of  the  note  in  suit,  or  merely  as  a  collateral  se- 
curity for  it.     Upon  this  issue  the  court  instructed  the  jury  that,  as- 
the  transaction  took  place  in  Connecticut,  it  was  to  be  governed  by  the 
law  of  that  State :  that  by  that  law  the  giving  of  a  promissory  note 


OF   STANDARD   DECISIONS.  359 

was  not  presumed  to  be  in  payment  of  a  preexisting  debt,  and  there- 
for, before  they  could  find  for  the  defendant,  they  must  be  satisfied 
that,  by  the  agreement  of  the  parties,  the  plaintiff  received  the  new 
note  in  payment  of  the  note  in  suit.  Held,  also,  the  plaintiff,  having 
requested  an  instruction,  that  the  presumption  of  law  is  that  the 
holder  did  not  intend  to  accept  the  note  in  payment,  and  to  discharge 
the  maker  of  the  note  in  suit,  and,  unless  the  jury  find  that  a  distinct 
agreement  was  made  to  accept  the  note  in  payment,  they  cannot  find 
that  it  was  accepted  in  payment,  and  the  instruction  being  given  in 
substance,  though  not  in  the  words  requested,  that  the  plaintiff  had  no 
ground  of  exception.  Connecticut  Trust  Co.  v.  Melendy,  119  Mass. 
449. 

2634.  A   promissory  note,  the  following  being  a  copy  thereof: 
"$2,268.00.     Boston,   February    1st,    1872.     For    value    received,   I 
promise  to  pay  to  Benjamin  B.  Newhall,  or  order,  $2,268.00  in  one  and 
a  half  years,  or  sooner,  at  the  option  of  the  mortgagor,  from  this  date, 
with  interest,  to  be  paid  semiannually,  at  the  rate  of  seven  per  cent, 
per  annum  during  said  term,  and  for  such  further  time  as  said  princi- 
pal sum,  or  any  part  thereof,  shall  remain  unpaid.     Secured  by  mort- 
gage of  real  estate  in  Boston,  Mass.,  stamped  as  required  by  U.  S. 
Internal  Revenue  Laws,  to  be  recorded  in  Suffolk  Registry  of  Deeds. 
(Indorsed)    Waving    demand    and    notice.     Benjamin    B.    Newhall." 
Held,  that  each  of  the  instruments  in  suit  expresses  a  promise  to  pay 
a  certain  sum  of  money  in  a  year  and  a  half  from  its  date,"  or  sooner, 
at  the  option  of  the  mortgagor,"  with  interest,  at  a  certain  rate,  "  dur- 
ing said  term."     The  principal  sum  is  to  be  paid,  either  at  the  time 
specified,  or  at  any  earlier  time  that  the  mortgagor  may  elect.     The 
interest  is  to  be  computed  only  until  the  note  is  paid.     Both  the  time 
of  payment  of  the  principal  and  the  amount  of  interest  are  uncertain, 
and  depend  upon  the  election  of  the  mortgagor,  who  would  seem,  from 
the  memorandum  upon   the  note  itself,  to  be  the  maker  of  the  note. 
But  if  he  were  a  third  person,  it  would  not  aid  the  plaintiff.     In  either 
alternative  the  contract,  not   being  a  promise  to  pay  a  fixed  sum  of 
money  at  a  definite  time,  lacks  the  essential  quality  of  a  negotiable 
promissory  note,  and   cannot  be  sued  as  such.      Way  v.  Smith,  111 
Mass.  523;  Hubbard  v.  Mossely,  11  Gray,  170;  Story  on  Notes,  §  22  ; 
Stults  v.  Silva,  119  Mass.  137. 

2635.  A  promissory  note  executed  by  a  married  woman  in  the  or- 
dinary form,  and  perfect  in  its  terms,  the  fact,  that  in  order  to  make  it 
binding  upon  her,  the  addition  of  other  terms  not  suggested  by  the 
paper  itself  is  required,  i.  e.,  an  expression  of  an  intent  to  charge  here 
separate  estate,  does  not  justify  the  payee  in  making  such  an  addition 
after  delivery  of  the  note  and  without  her  knowledge  and  consent;  and 
if  so  made  it  is   a  material  alteration  which  vitiates  the  instrument. 
An  authority,  however,  given  by  the  maker  to  the  payee,  to  add  any- 
thing to  the  note  which  counsel  when  consulted  may  suggest  to  be 
needful   to  make  the  note  "  right,  legal  and  proper,"  is  sufficient  to 
authorize  such  an  addition  as  will  make  the  note  legal  and  binding 
upon  her,  and  it  is  not  material  that  she  is  not  advised  of  the  precise 
terms  of  the  addition.      Taddiken  v.  Cantrell,  69  N.  Y.  597. 

2636.  A  promissory   note   made   for   the   accommodation  of  the 
payee,  but  without  restriction  as  to  its  use,  an  indorsee  taking  in  good 


360  MONROE'S  DIGEST 

faith  as  collateral  security  for  an  antecedent  debt  of  the  payee  and  in- 
dorser,  without  other  consideration,  occupies  the  position  of  a  holder 
for  value,  and  can  recover  thereon  against  the  maker.  The  precedent 
debt  is  a  sufficient  consideration  for  the  transfer,  and  no  new  consider- 
ation need  be  shown.  It  is  only  where  the  note  has  been  diverted  from 
the  purpose  for  which  it  was  intended,  by  the  payee,  or  where  some 
other  equity  exists  in  favor  of  the  maker,  that  it  is  necessary  that  the 
holder  should  have  parted  with  value  on  the  faith  of  the  note,  in  order 
to  enforce  the  same.  Grocers1  Bank  v.  Penfield,  69  N.  Y.  502. 

263T.  A  promissory  note  made  payable  "  at  any  bank  "  in  a  speci- 
fied city,  proof  of  presentation  at  any  bank  in  such  city,  and  due  pro- 
test and  notice,  will  bind  the  indorser.  The  protest  of  a  note  paj'able 
"  at  any  bank  in  Savannah,  Georgia,"  showed  that  the  note  was  pre- 
sented for  payment  "  at  the  Southern  Bank  of  the  State  of  Georgia," 
but  did  not  expressly  state  that  this  bank  was  in  the  City  of  Savannah. 
The  caption  showed  that  the  protest  was  in  the  City  of  Savannah, 
Georgia,  and  the  protest  cited  that  the  notary  resided  in  that  city. 
After  showing  demand  and  refusal  of  payment,  etc.,  it  concludes: 
"  Thus  done  and  protested  in  the  City  of  Savannah  aforesaid."  Held, 
(1)  The  protest  sufficiently  showed  that  the  bank,  at  which  demand 
was  made,  was  located  in  the  City  of  Savannah.  (2)  Parol  proof  was 
admissible,  in  connection  with  the  protest,  to  show  that  a  bank  of  the 
same  name  as  that  mentioned  in  the  protest,  was  located  in  the  City  of 
Savannah,  at  the  date  of  the  note  and  its  protest.  Boit  &  M.  Me- 
Kenzie  v.  Corr,  54  Ala.  112. 

2638.  In  an  action  on  a  promissory  note  by  the  payee  against  the 
maker,  on  the  issue  of  payment,  it  appeared  by  an  agreement  of  even 
date  between  the  parties,  that  the  maker  was  to  transfer  to  the  paj-ee 
certain  shares  of  stock  in  a  corporation  as  security  for  the  payment  of 
the  note,  and,  in  case  of  his  failure  to  pay,  the  payee  was  to  take  the 
stock  in  full  satisfaction  ;  that,  before  the  note  became  due,  the  maker 
executed  an  instrument  purporting  to  be  a  transfer  of  the  stock  to  the 
payee,  and  produced  a  certificate  of  stock,  which  stated  that  the  maker 
was  owner  of  the  stock,  and  that  it  was  only  transferable  on  the  books 
of  the  corporation ;  and  that  these  instruments,  together  with  the 
original  agreement,  were  deposited  by  mutual  consent  with  a  third  per- 
son. Held,  that  the  transfer  and  certificate  were  admissible  in  evi- 
dence ;  that  it  was  competent  for  the  judge,  who  tried  the  case  without 
a  jury,  to  find  that  the  third  person  held  the  stock  ;  that  the  transfer 
conveyed  a  title  between  the  parties  ;  and  that  the  maker  might  testify 
that  he  had  paid  for  the  stock  in  full.  Brown  v.  Smith,  122  Mass.  589. 

2639_  A  promissory  note  in  the  usual  form,  with  interest  coupon 
notes  attached,  but  containing  a  clause  that  if  default  be  made  in  the 
payment  of  any  instalment  of  interest  when  the  same  becomes  due, 
and  such  default  shall  continue  for  thirty  days,  then  the  principal  sum 
shall,  at  the  election  of  the  holder  of  said  note,  become  due  and  pay- 
able, such  election  to  be  made  at  any  time  after  said  thirty  days,  with- 
out notice,  is  such  an  obligation  as  is  denominated  in  law  a  promissory 
note.  Sea  v.  Glover,  1  Bradwell's  111.  App.  Rpts.  335. 

2640.  In  construing  the  contract  of  guaranty  thereon,  it  is  imma- 
terial whether  the  instrument  is  technically  a  promissory  note  or  not. 
It  is  an  obligation,  the  performance  of  which  the  guarantor  had  a  right 


OF  STANDARD  DECISIONS.  361 

'to  guarantee,  and  the  undertaking  of  the  guarantee  is  that  the  maker 
of  the  note  shall  meet  his  undertaking  according  to  the  terms  and 
spirit  of  the  contract,  and  on  a  failure  so  to  do  the  contract  of  guar- 
anty is  broken,  and  the  liability  of  the  guarantor  arises.  Ibid. 

2641.  The  guarantor  is  liable  on  his  contract  when  the  holder  of 
the  note  elects  to  declare  the  whole  sum  due  by  reason  of  default  in 
payment  of  interest,  even  though  the  principal  sum  is  not  due,  by  the 
terms  of  the  note.     Bringing  suit  is  sufficient  notice  of  the  election 
of  the  holder  of  the  note  to  declare  the  whole  sum  due.     Ibid. 

2642.  This  action  was  upon  a  promissory  note,  made  and  executed 
by  the  S.  J.  W.  and  indorsed,  among  others,  by  defendants,  H.  and  E., 
for  the  accommodation  of  said  corporation,  and  discounted  by  plain- 
tiff.    The  defence  was  that  after  the  indorsers  were  duly  charged  the 
note  was  paid  by  the  substitution  of  a  renewal  note,  not  indorsed  by  the 
•defendants,  and  the  payment  of  the  discount,  and  when  the  first  re- 
newal note  became  due,  the  discounting  of  another  note,  to  take  up 
the  first  renewal  note,  which  second  renewal  note  was  also  without  the 
indorsement  of  the  defendants.     The  court  found,  among  other  things, 
in  substance,  that  at,  about  or  shortly  after  the  maturity  of  the  note 
in  suit,  the  maker,  by  its  treasurer,  Bean,  presented  to  the  plaintiff 
another  note  dated  September  19,  1872,  and  in  all  other  respects  pre- 
cisely like  said  first  note,  except  the  indorsement  of  the  defendants  E. 
&  H.,  and  requested  the  plaintiff  to  take  the  same  in  renewal  of  said 
first  note.     The  plaintiff  refused  without  the  indorsement  of  E.  &  H. 
That  thereupon  Bean  left  the  second  note  with  the  plaintiff,  together 
•with  a  sum  which  would  amount  to  the  discount  thereon,  saying  he 
would  procure  E.  &  H.  to  call  at  the  plaintiffs  bank  and  indorse  the  same 
as  they  had  agreed.     That  thereupon,  and  solely  in  anticipation  that 
said  indorsements  would  be  made,  the  plaintiff's  bookkeeper  entered 
«aid  second  note  on  the  books  of  the  plaintiff.     That  at  or  about  the 
maturity  of  the  second  note,  the  same  not  having  been  indorsed  by  E. 
&  H.,  the  said  iron  works  by  their  treasurer,  presented  the  plaintiff 
another  note  dated  November  21,  1872,  and  in  all  other  respects  pre- 
cisely like  said  second  note,  and  requested  the  plaintiff  to  take  the 
«ame  in  renewal  of  said  first  note.     This  the  plaintiff  refused  to  do, 
unless  the  indorsements  of  said  E.  &  H.  were  procured  thereon.     Said 
Bean  therefore  took  said  second  note  and  left  said  third  note  with  the 
plaintiff,  together  with  a  sum  which  would  amount  to  the  discount 
thereon,  saying,  he  would  have  said  E.  &  H.  call  at  the  plaintiff's  bank 
and  indorse  the  same,  alleging  some  excuse  why  they  had  not  already 
done  so.     That  neither  E.  nor   H.  ever  called  or  indorsed  said  note. 
That  said  first  note  has  not  been  paid  or  renewed,  or  the  payment 
thereof  extended  in  any  manner.     That  neither  said  second  or  third 
note  was  discounted  by  the  plaintiff  or  taken  in  renewal  of  said  first 
note.     Court   of  Appeals,   Miller,   J.    /This  case  involves  a  question 
whether   there   was   an   extension   of  the    time   of   payment   of  the 
note    upon   which    this    action   was   brought,   and   a   suspension   of 
the  right  of  action  on  the  same,  by  the  substitution  of  a  renewal  note 
became  due  by  the  discounting  of  another  note  to  take  up  the  first  re- 
newal note,  which  also  was  without  the  indorsement  of  the  defendants, 
who  have  appealed.     The  judge  upon  the  trial  found  that  the  first  note 
•was  not  paid  or  renewed  in  any  manner,  and  that  neither  the  second 


362  MONROE'S  DIGEST 

nor  third  note  was  discounted  by  the  plaintiff  or  taken  in  renewal  of 
the  first  note.  I  think  that  these  findings  are  sufficiently  supported 
by  the  testimony.  The  proof  shows  that  when  the  agent  of  the  iron 
company  presented  the  first  renewal  note  to  be  discounted,  his  proposi- 
tion was  declined  upon  the  distinct  ground  that  the  note  had  not  the 
Indorsement  of  H.  &  E.  The  agent  then  stated  that  they  were  to  have 
been  on,  and  said  that  they  would  call  in  and  indorse  the  notes.  The 
same  promise  was  substantially  made  upon  the  presentation  of  the 
second  renewal  note,  and  excuse  given  why  it  had  not  been  done.  The 
payment  of  the  discount,  it  appears,  was  made  upon  the  same  condition, 
and  the  facts  in  connection  with  the  retaining  of  the  possession  of  the 
old  note  tend  to  establish  an  agreement  that  each  of  the  renewal  note* 
were  received,  and  agreed  to  be  discounted  only  upon  the  condition 
stated.  The  entry  on  the  books  of  the  plaintiff  shows,  on  its  facer 
that  the  renewal  notes  were  discounted,  and  that  both  the  original  and 
the  second  note  were  paid,  and  is  a  strong  circumstance  against  the 
conclusion  that  the  renewal  notes  were  received  conditionally ;  but 
this  fact  was  subject  to  be,  and  as  the  finding  of  the  judge  shows,  was- 
explained  by  evidence  to  the  effect  that  these  entries  were  made  by  the 
bookkeeper,  and  it  is  claimed  in  anticipation  that  the  agreement  would 
be  perfected  by  the  indorsement  of  the  two  defendants  named.  It- 
must  be  confessed  that  the  testimony  is  not  very  satisfactory  ;  but  if 
we  allow  full  credit  to  explanation  given  for  the  entries  made,  I  do  not 
see  why  it  is  not  sufficient.  Such  a  state  of  facts  might  well 
exist  in  entire  harmony  with  the  theory  that  no  extension  of  the  time 
of  payment  was  made,  and  conceding  that  such  was  the  case,  the  find- 
ing of  the  judge  would  be  justified.  The  counsel  for  appellants  claim 
that  the  notes  were  and  must  have  been  received  upon  some  agreement,, 
and  that  this  is  expressed  in  the  testimon}'  of  the  cashier,  who,  in  an- 
swer to  the  question  put,  Plow  the  entries  came  to  be  made  in  the 
book,  answered :  Because  Bean  told  him  that  the  indorsers  would 
come  in,  in  a  day  or  two,  and  indorse.  This  answer  should  be  con- 
sidered in  connection  with  all  that  transpired,  and,  among  other  things,, 
with  the  explanation  subsequently  given  to  the  effect  that  the  entry 
was  made  by  the  bookkeeper,  as  well  as  the  other  circumstances. 
Certainly  the  testimony  referred  to  was  not  entirely  conclusive,  and1 
was  for  the  judge  to  pass  upon  in  connection  with  the  other  evidence- 
upon  the  trial.  Although  the  circumstances  are  quite  strong  to  show 
that  the  second  and  thii'd  notes  were  discounted  and  the  previous  note 
taken  up,  yet  there  was  an  explanation  of  these  facts  which,  if  believed,, 
tended  very  much  to  support  the  finding  of  the  judge  ;  and  we  are  not 
at  liberty  to  disturb  the  same.  Auburn  City  National  Bank  v.  Hun- 
siker,  et  aZ.,  72  N.  Y.  App.  252. 

2643.  A  party  authorized  to  sell  property,  in  the  absence  of  any 
express  limitation  of  his  powers,  is  authorized  to  do  any.  act,  or  to- 
make  any  declaration  in  regard  to  the  property  found  necessary  to- 
make  a  sale,  and  usually  incidental  thereto.  This  action  was  brought 
to  have  three  promissory  notes,  made  by  plaintiff  payable  to  his  own« 
order,  and  indorsed  by  him,  declared  void  for  usury,  to  compel  a  can- 
cellation thereof,  and  return  of  certain  stock  pledged  as  collateral,  and 
for  an  injunction,  receiver,  etc.  The  notes  were  delivered  by  plaintiff 
to  B.  &  Co.,  note  brokers  in  the  city  of  New  York,  of  whom  plain- 


OF   STANDARD   DECISIONS.  36£ 

tiff  had  been  in  the  habit  of  purchasing  commercial  paper  to  a  large 
amount,  and  to  whom  he  was  indebted  upon  account,  to  be  sold  at  a 
discount  of  12  per  cent.,  and  the  avails  to  be  applied  upon  plaintiffs- 
account.  B.  &  Co.  sold  the  notes  to  defendant  G.  at  the  rates  stated. 
Prior  to  the  execution  by  plaintiff  of  any  note,  and  before  B.  &  Co. 
had  received  any  authority  to  sell,  G.  applied  to  the  latter  to  purchase 
notes,  saying  he  desired  first-class  business  paper  only.  B.  &  Co., 
said  they  would  have  paper  of  that  kind,  and  mentioned  the  plaintiff's 
name.  Shortly  after  they  procured  a  note  from  plaintiff,  with  authority 
to  sell  at  a  discount  of  12  per  cent., and  apply  the  proceeds  to  his  indebt- 
edness to  them.  B.  &  Co.,  sent  this  note  to  G.,  who  purchased  it  at  12  per 
cent.  Held,  it  cannot  be  successfully  contended  that  the  notes  in 
question  had  an  inception  before  they  were  passed  to  G.  The  indebt- 
edness to  B.  &  Co.  would  have  been  a  good  consideration  for  them, 
and  had  that  been  merged  in  them,  and  they  given  as  evidence  of  its 
existence  (  Wilkie  v.  Roosevelt,  3  John.  Cases.  66),  they  would  have  had 
an  inception  prior  to  the  taking  of  them  by  G.  But  they  were  not 
given  for  that  indebtedness.  They  were  made  for  just  the  purpose  for 
which  they  were  used,  to  be  sold  at  a  discount  of  12  per  centum  per 
annum.  The  avails  of  the  sale  were  to  be  applied  on  the  indebtedness,, 
and  thus  only  was  the  indebtedness  affected  by  them.  That  being  so,, 
it  is  plain  that  they  were  taken  by  G.  at  a  usurious  discount ;  and 
that  they  are  void,  unless  Ahern  is  estopped  from  setting  up  the  usury. 
An  estoppel  arises  in  such  cases  when  the  maker  of  the  note,  before- 
the  sale  of  it,  has  declared  to  the  buyer  that  it  is  a  business  note,  and 
the  buyer  has  so  acted  thereupon  as  that  he  will  be  harmed  if  the 
usury  is  known.  Was  Ahern  brought  within  that  rule  ?  He  did  not 
in  person  make  such  declarations.  It  is  claimed  that  B.  &  Co.  were 
his  agents,  and  that  they  made  such  declarations  acting  as  his  agents, 
and  with  power  to  make  them.  We  will  first  see  whether  they  did  so- 
represent,  and  then  whether  they  had  authority  so  to  do ;  or,  if  not, 
whether  their  act  in  so  doing  had  been  adopted  and  satisfied  by  Ahern. 
Ahern  v.  Goodspeed,  72  N.  Y.  App.  108. 

2644.  The  trial  Court  found  that  B.  &  Co.  made  declarations  to  G.,. 
at  the  time,  and  of  a  purport  sufficient  to  bring  them  within  that  ruler 
and  that  G.  acted  upon  those  declarations.  It  is  manifest  that  he 
would  be  pecuniarily  harmed  if  the  usury  is  shown,  and  the  notes  de- 
clared void  therefor.  The  plaintiff  urges,  however,  that  there  was  no 
evidence  to  sustain  the  finding  above  mentioned.  The  testimony  thnt 
the  declarations  were  made  by  B.  &  Co.  is  sufficient  to  sustain  the  find- 
ing in  its  substance,  so  far  as  the  making  is  concerned.  G.  asked  of 
them  for  first-class  business  paper.  They  said  they  had  a  good  supply. 
They  opened  their  book  and  began  to  show  their  business  paper.  He 
said  he  wanted  first-class  business  paper,  secured  by  collaterals.  They 
told  him  they  had  just  the  notes — some  of  that  class  of  paper — that  is,  as 
I  read  it,  first-class  business  paper,  secured  by  collaterals.  He  had  be- 
fore that  bought  paper  of  them — impliedly  business  paper.  It  is  shown 
that  it  was  accompanied  by  collaterals.  The}*  said  that  they  would 
have  some  of  that — that  is,  paper  of  that  character ;  and  then  men- 
tioned the  name  of  Ahern.  They  said  that  they  had  some  of  that  kind 
of  paper,  and  told  him  about  the  standing  of  Ahern.  All  that  had 
been  before  declared  concerning  it  still  attached  to  it,  and  made  a  part 


364  MONROE'S  DIGEST 

of  the  continuous  transaction.  It  was  taken  by  G.,  and  sold  by  B.  & 
Co.,  as  the  note  which  was  the  subject  of  offer  by  them,  and  of  considera- 
tion by  him,  and  of  his  and  their  acts  and  declaration.  It  was  taken 
in  reliance  thereon.  Though  at  the  hour,  or  during  the  dajr,  of  the 
making  of  a  representation  as  to  property  offered  for  sale,  the  subse- 
quent vendee,  then  negotiating  for  it,  or  the  like  of  it,  does  not  con- 
clude a  bargain  for  it,  if  he  afterwards,  as  a  continuation  of  the  negotia- 
tion, becomes  a  purchaser,  the  representations  are  still  a  part  of  the 
res  gestse,  and  bind  the  maker  of  them  (see  per  Holt,  C.  J.  Lyney  v. 
Selby,  3  La.  Raym.  118-20;  Wilmot  v.  Nurd,  11  Wend.  584).  As  to 
the  other  two  notes,  the  testimony  of  G.  is  explicit  that  B.  &  Co.  told 
him,  at  the  time  of  sale  of  them,  that  they  were  business  paper,  and 
the  best  kind  of  business  paper.  From  all  that  is  testified  to  by  G., 
the  inference  is  easy  and  natural  that  he  would  not  have  taken  the 
notes,  had  he  not  believed  that  they  were  business  paper,  and  that  he 
so  believed,  from  what  was  said  and  took  place  between  B.  &  Co.  and 
him.  Ibid. 

2645.  If  B.  &  Co.  were  agents  of  Ahern,  with  authority  to  make 
such  declarations,  and  to  do  such  acts  concerning  the  notes,  he  also  is 
estopped.     B.  &  Co.  were  not  the  agents  of  G.     He  went  to  their  place 
of  business  to  buy  of  them  what  they  had  to  sell,  for  themselves  or 
•others.     They  did  not  own  these  notes.     If  they  had  owned  them,  the 
notes  would  have  had  an  inception  in  their  hands,  and  a  different  ques- 
tion would  have  arisen.    So  they  did  not  sell  them  as  their  own.    They 
sold  them  for  a  principal,  who  could  be  no  other  than  Ahern.     They 
had  been  his  agents  in  brokerage,  or  other  pecuniary  transactions,  for 
:some  time.     It  was  from  such  things   that  his  indebtedness  to  them 
grew  up.     They  charged  him  their  commission   on  the  sale  of  these 
notes  to  G.,  and  thus  he  paid  them  their  hire  as  his  agents.     His  in- 
debtedness was  paid  by  the  sale  of  these  notes,  and  he  received  and  re- 
tained a  check  of  B.  &  Co.  for  a  balance  thereafter  due  to  him  from  the 
.avails  of  the  sale.     Ibid. 

2646.  Here  arises  an  interesting  question  in  the  case.     When  B. 
&   Co.  made  the  representation  to  G.,  upon  which  the  first  note  was 
taken  by  him,  that  note  was  not  in  existence,  nor  had  Ahern  authorized 
them  to  sell  a  note  of  his  to  G.  or  other  person.     It  is  said  that  they 
were  not  then  his  agents,  and  that  whatever  they  said  at  that  time 
•could  not  affect  him.     It  is  not  needed  that  there  be  an  express  act  of 
ratification,  in  order  to  hold  the  principal.     His  subsequent  assent  may 
be  inferred  from  circumstances,  which  the  law  considered  tantamount 
to  an  express  ratification.     And  the  acts  of  the  principal  are  to  be  con- 
strued liberally  in  favor  of  the  adoption  of  the  acts  of  an  agent.    (  Cod- 
wise  v.  Hacker,  1  Caines  R.  526,  per  Kent,  J.  p.  540.)     It  already  ap- 
pears that  Ahern  know  that  the  first  note  made  by  him  was  to  be  sold 
by  B.   &  Co.     He  also  knew,  as  his  testimony  shows,  that  it  was  to  be 
sold  in  pursuance  of  a  prior  negotiation  at  a  discount  of  twelve  per 
centum  per  annum.     He  knew  that  the  note  was  not  business  paper. 
He  had  been  a  large  purchaser  of  paper  of  B.  &  Co.,  hence  knew  their 
mode  of  effecting  sales  of  paper.     It  is  to  be  inferred  that  he  knew  that 
in  the  purchase  of  paper,  at  a  greater  rate  of  discount  than  seven  per 
centum  per  annum,  the  buyer  usually  exacted  a  representation  that  the 
paper  sold  was  business  paper,  so  that  he  might  rely  upon  the  fact, 


OF   STANDARD   DECISIONS.  365 

if  indeed   the   paper  was  such,  or  upon  the  estoppel  if  it  was  not. 
Ibid. 

2647.  Ahern  adopted  the  results  of  B.  &  Co.'s  acts  and  declara- 
tions.    He  received  and  has  kept  the  fruits  of  their  action  with  G.     It 
is  a  fair  inference  that  he  falls  within  the  second  branch  of  the  princi- 
pal, which  we  have  above  stated,  by  which  a  person  ratifies  the  acts  of 
one  acting  as  his  agent,  without  authority  at  the  time.     The  maxim r 
is,   omnis   ratihabitio  retrotrahitur   et   mandata  priori   acquiparetur. 
Every  ratification  is  retrospective,  and  is  equivalent  to  a  prior  com- 
mand.    On  this  ground  the  plaintiff  Ahern    is   to   be  held  estopped 
from  setting  up  usury  in  the  first  note.     On  the  ground  of  a  prior 
authority,  he  is  to  be  estopped  from  setting  up  usury  in  the  other  two- 
notes.     Ibid. 

2648.  Drafts  did  not  specify  any  place  of  payment ;  they  were 
drawn  and  discounted  in   Canada.     Defendant  pleaded  usury.     Heldt 
that  the  contract  was  to  be  governed  by  the  laws  of  Canada,  not  of  this 
State,  and  as  by  the  laws  of  Canada  usury  is  not  a  defence,  the  plea- 
was  not  sustainable.     Merchants'  Bank  of  Canada  v.  Griswold,  72  N. 
Y.  Ap.  472. 

2649.  It  appears  that  the  plaintiff's  intestate,  G.,  and  the  defend- 
ant lent  to  one  J.,  the  owner  of  a  patent  right,  $5,000,  G.  contributing 
$1,000  and  the  defendant  $4,000.     J.  gave  his  note  therefor  to  the  de- 
fendant, payable  in  four  months,  and  assigned  to  him  the  patent  right 
as  collateral  security  ;  and  also  gave  him  an  agreement  to  convey  an 
interest  in  the  patent  right  for  the   benefit  of  himself  and  G.     It  ia 
further  agreed  that  they  should  be  jointly  interested  in  the  loan,  the 
collateral   security   and   the  agreement  to  convejr  an  interest  in  the 
patent  in  the  proportion  of  one  to  four.     At  the  same  time  the  defend- 
ant gave  the  note  in  suit  to  G.  as  evidence  of  his  interest  in  the  loan 
and  security,  with  the  express  agreement  that  it  should  not  be  de- 
manded or  paid  until  the  defendant  should  receive  payment  of  the  loan 
to  J.     At  maturity  J.  did  not  pay  his  note,  and  with  the  consent  of 
G.  the  patent  right  was  sold  by  the  defendant  at  auction  to  one  T.  for 
an  amount  equal  to  the  sum,  with   interest,  for  which  it  was  held  as 
collateral  security  ;  and,  at  the  request  of  G.,  the  defendant  took  T.'» 
note  for  the  amount,  with  the  agreement  that  the  defendant  should  hold 
it  as  the  joint  property  of  himself  and  G.,  and  that  a  company  should 
be  formed  to  use  and  work  the  patent.     This  was  in  effect  carrying  out 
and  executing  the  agreement  previously  made,  that  defendant  should 
not  be  called  upon  to  pay  his  note  till  J.'s  note  was  paid,  by  substitut- 
ing for  payment  in  cash  and  interest  to  the  same  amount  in  the  note 
given  by  T.    This  agreement  is  not  inconsistent  with  terms  of  the  note. 
It  was  made  when  the  note  was  due,  after  the  sale  of  the  collateral  se- 
curity, when   G.   had  the  right  to  enforce  the  payment,  and  when  the 
defendant  could  have  paid  it  from  the  proceeds  of  the  sale,  instead  of 
taking  the  note  of  T.    It  was  a  mode  of  payment  agreed  upon  between 
the  parties.      Ward  v.  Winship,  12  Mass.  480.     The  agreement  had  a 
sufficient  consideration  in  the  fact  that  the  defendant  took  the  note  in- 
stead of  cash  at  G.'s  request.     A.'s,  an  additional  agreement,  was  made 
at  the  same  time,  which  was  part  of  the  foregoing,  as  to  the  use  the  de- 
fendant might  make  of  the  note,  which  he  held  for  their  joint  benefit. 
And  it  was  agreed  that  if  the  defendant  would  subscribe  to  the  stock 


366  MONROE'S  DIGEST 

of  the  company,  and  pay  for  the  same  with  the  note  held  for  their  joint 
benefit,  the  note  in  suit  might  remain,  and  the  defendant  should  not  be 
called  upon  to  pay  it,  until  the  profits  of  so  much  of  the  stock  as 
equitably  represented  the  amount  of  the  note  should  be  sufficient  to  pay 
it.  Relying  on  this  agreement,  the  defendant  afterwards  subscribed  to 
the  stock,  paid  for  the  same  with  the  note  of  T.,  instead  of  demanding 
A  cash  payment  from  T.,  and  he  has  never  received  any  profits  what- 
ever. Gr.  having  agreed  to  this  method  of  payment,  his  administratrix 
<jannot  recover  on  this  note,  in  violation  of  his  agreement.  Gleason 
v.  Saunders,  121  Mass.  436. 

2650.  In  an  action  on  a  non-negotiable  promissory  note  made  by 
"the  defendant  to  the  plaintiff  for  $4,000,  dated  the  7th  December,  1872, 
it  appeared  that  the  note  when  made  had  no  stamps,  but  that  after- 
wards, in  July,  1874,  the  plaintiff  showed  the  note  to  her  attorney, 
who  informed  her  that  it  should  have  been  stamped,  and  told  her  to 
affix  stamps   for  the  double  duty.     Through  some  misunderstanding 
she  affixed  only  single  stamps  ;  and  afterwards,  in  September,  1874, 
she  sent  the  note  to  the  attorney,  when  he,  having  discovered  this, 
acting  as  plaintiff's  agent,  affixed  the  required  double  stamps.     Held, 
that   the   plaintiff  was   not  a  "  subsequent  party  to  the  note,"  or  a 
•"  holder  without  becoming  a  party,"  within  83  Vic.,  ch.  13,  §  12,  so  as 
to  have  enabled  her  to  have  affixed  the  double  duty,  and  rendered  the 
note  valid,  although  she  might  have  made  it  valid  by  affixing,  as  agent 
for  the  maker,  stamps  for  the  single  day,  when  the  note  was  delivered 
to  her.     Escott  v.  Escott,  22  C.  P.  305.     Adhered  to,  and  Wolley  v. 
Hunton,  33  U.  C.  R.  152,  dissented  from.     Held,  however,  under  37  Tic. 
<;h.   47,  §  2,  that  the  double  stamps  affixed  to  the  note  in  September, 
after  the  passage  of  the  Act,  by  the  attorney  as  plaintiff's  agent,  ren- 
dered the  note  valid,  for  that  the  plaintiff  then  first  acquired  knowledge 
within   the   Act   of  stamps   being    necessary,  it   being  found  by  the 
learned  Judge  that   her  previous  omission  to  affix  them  was  through 
error  and  mistake,  and  without  any  intention  on  her  part  to  violate  the 
law.     House  v.  House,  24  Upper  Canada  Com.  Pleas  Rpts.  526. 

2651.  A.  and  H.,  a   firm  doing  business  in  Hamilton,  had  a  draft 
for  $1,200,  accepted  by  B.  at  Montreal  for  their  accomodation,  falling 
due  on  the  27th  of  April.     H.,  in  order  to  obtain  funds  to  meet  it  on 
the  26th  of  April,  procured  a  draft  on  B.  for  $600,  to  be  discounted  by 
the  plaintiffs,  telling  them  that  it  would  be  accepted,  and  the  proceeds 
of  it  were  placed  to  the  general  credit  of  the  firm.     This  draft  was  sent 
to  B.  for  acceptance,  and  H.  on  the  same  day  wrote  to  him,  inclosing 
the    firm's  check  for  $1,200  on  the  Bank  of  Montreal,  to  take  up  the 
$1,200  draft,  and  requested  him  to  accept  that  for  $600.     On  the  27th 
B.  duly  paid  the  draft  for  $1,200.     On  the  28th  A.  and  H.  had  a  dif- 
ference, and  A.,  hearing  from  H.  that  the  firm  were  in  difficulties,  and 
that  he  intended  using  their  funds  in  paying  B.  and  another  person,  A. 
thereupon  on  the  29th  drew  out  on  the  check  of  the  firm  their  balance 
in  plaintiffs'  bank,  consisting  of  the  proceeds  of  the  draft  for  $600,  of 
which  A.  knew  nothing,  and  of  other  moneys,  and  handed  it  to  their 
solicitor  for  the  benefit  of  the  creditors  generally.     Between  the  25th 
and  29th  both  the  debtor  and  creditor  side  of  the  firm's  account  had 
been  dealt  with,  and  the  balance  Increased  in  their  favor.     H.  on  the 
29th,  on  hearing  what  A.  bad  done,  wrote  to  B.  that  in  consequence  the 


OF   STANDARD   DECISIONS.  367 

check  sent  him  could  not  be  paid,  and  B.  then  refused  to  accept  the 
draft.  On  the  2d  of  May  the  firm  became  insolvent,  and  an  assignee 
was  appointed,  to  whom  the  solicitor  handed  over  the  moneys  deposited 
with  him.  The  plaintiffs,  however,  claimed  the  amount  of  the  $600 
draft,  contending  that  it  was  only  discounted  on  the  faith  of  its  being 
accepted,  and  that  as  one  of  the  partners  had  caused  its  non-acceptance 
by  his  letter  to  the  drawee,  there  was  a  failure  of  consideration,  and 
that  they  were,  therefore,  entitled  to  follow  the  money  in  the  as- 
signee's hands ;  but  held,  that  they  were  not  so  entitled ;  that  the  case 
was  the  ordinary  one  of  the  discount  of  a  draft  on  the  belief  that  it 
would  be  accepted;  and  that  the  money  formed  part  of  the  firm's  gen- 
eral assets  and  passed  to  the  assignee.  Canadian  Hank  of  Commerce 
v.  Davidson,  25  Upper  Canada  Com.  Pleas  Rpts.  537. 

2652.  The  payee  of  a  joint  and  several  note,  at  the  request  of  the 
principal  maker,  the  others  having  executed  it  for  his  accommodation, 
sent  it  to  a  bank  for  collection.     Plaintiff,  at  the  request  of  the  princi- 
pal, and  upon  the  understanding  that  the  note  should  be  transferred  to 
him,  delivered  to  the  bank  the  amount  due  thereon,  and  received  the 
note.     The  money  was  forwarded  by  the  bank  to  the  payee,  who  re- 
ceived it  without  knowing  but  that  it  was  a  payment,  after  learning  the 
facts,  however,  he  retained  the  money.     In  an  action  upon  the  note, 
held,  that,  although  the  bank  had  no   authority  to  sell,  yet  the  reten- 
tion of  the  money  by  the  payee,  after  knowledge,  and  his   omission 
thereafter  to  demand  the  note  or  assert  title  thereto,  was  a  ratification 
of  the   sale ;  and   that,  at   least  in  the   absence  of  evidence  that  the 
sureties  had  been  by  information  and  a  consequent  relief  that  the  note 
was  paid,  induced  to  remain  quiet,  and  so  had  been  injured,  plaintiff 
was  entitled  to  recover.      Coykendall  \.  Constable,  99  N.  Y.  309. 

2653.  B.   Bros.  &  Co.,  carrying  on  business  at  Morristown  and 
Syracuse  in  the  State  of  New  York,  and  also  at  Brockville  in  Ontario, 
and   on   the  llth  October,  1872,  at  Morristown,  signed  a  promissorj" 
note  for   $500  at  three  months,  payable  at  a  bank  at  Syracuse  to  the 
order  of  C.  F.,  a'  sleeping  member  of  the  firm,  who  at  that  time  and 
until  after  the  maturity  of  the  note  resided  at  Brockville.     The  note 
was  indorsed  by  C.  F.,  as  also,  but  merely  for  the  accommodation  of 
the  firm,  by  one  H,  II.  and  one  A.  B.,  both  residents  of  Syracuse.    The 
note  so  indorsed  was  handed  to  J.  W.  B.,  one  of  the  firm,  who  resided 
at  Brockville,  and  was  there  negotiated  by  him  with  a  person  named 
Harding   at  a  rate  exceeding  7  per  cent.,  and  Harding  sold  it  to  the 
plaintiff,  who   also  resided  in  Brockville.     The  note  was  left  by  the 
plaintiff  with  a  banker  at  Ogdensburg,  N.  Y.,  for  collection,  and  at  its 
maturity   H.  H.  came  over  to  Brockville  and  saw  the  plaintiff,  who 
agreed  to  accept  in  renewal  thereof  the  joint  note  of  H.  H.,  A.  B.,  and 
the  defendant  at  six  months,  which  was  accordingly  made   and   depos- 
ited with  Ogdensburg  banker,  who  then  gave  up  the  previous  note. 
Held,  that  the  note  of  the  llth  October,  1872,  although  drawn  up  and 
made  payable  in  the  State  of  New  York,  was  in  fact  made  and  became 
a  binding  contract  on  all  the  parties  thereto,  on  its  being  discounted  at 
Brockville,  and  must  therefore  be  deemed  a  Canada  contract  and  gov- 
erned  by  our  laws;  and  that  therefore  the  law  of  New  York,  which 
made  void  any  note  discounted  at  a  higher  rate  of  interest  than  7  per 
cent.,  or  any  note  in  substitution  thereof,  did  not  apply.     The  plain- 


368  MONROE'S  DIGEST 

tiff,  therefore,  having  sued  defendant  on  the  last  named  note,  Held, 
that  he  was  entitled  to  recover.  Cloyes  v.  Chapman,  27  Upper  Canada 
Com.  Pleas,  22. 

2654.  When  a  vendor,  who  has  executed  a  deed  to  the  land,  as- 
signs  a  note  executed  for  the  purchase  money  to  a  firm  as  collateral 
security  for  a  claim  of  a  smaller  amount,  it  is  competent  for  the  sur- 
viving  partner  of  the  firm,  and  the  administrator  of  the  vendor,  he 
having  died  in  the  meantime,  to  join  as  plaintiffs  in  a  proceeding  to 
enforce   the   vendor's   lien.     Reynold's  Adm'r,  et  al.  v.  West,  32  Ark. 
Reps.  244. 

2655.  A.  purchased  a  tract  of  land,  executed  his  note  for  the  pur- 
chase money  and  received  a  bond  for  title.     B.,  at  the  request  of  A. T 
paid  the  note  and  the  vendor  executed  a  deed  to  A. ;  at  the  same  time 
and  as   a  part  of  the  same  transaction,  A.  made  his  note  to  B.  for  the 
sum  so  paid  and  executed  a  mortgage  on  the  land  to  secure  it.     Held 
that  no  new  lien  was  created,  there  was  merely  a  transfer  of  the  orig- 
inal lien,  and  a  change  in  the  form  of  the  security.     Blevins  v.  Rog- 
ers, 32  Ark.  R.  258. 

2656.  The  grantor  of  certain  real  estate,  which  was  convej'ed  to 
the  grantee  in  pursuance  of  a  contract  made  with  the  grantor  by  the 
agent   of  the   grantee,   accepted   from    the   agent,   in   good   faith,  as 
genuine,  a  false  and  forged  mortgage  on  such  real  estate,  purporting  to 
have  been  executed  by  the  grantee,  to  secure  a  promissory  note  of  the 
agent  for  the  unpaid  balance  of  the  purchase  money.     Foreclosure  of 
the   mortgage   having   been   defeated   on   the   ground  of  its  forgery, 
though  judgment  on  such  note  was  rendered  against  the  agent,  who 
was  insolvent,  the  grantor  brought  an  action  against  the  grantee,  to  en- 
force a  lien  against  said  real  estate  for  such  purchase  money.     Held, 
on  demurrer  to  evidence  tending  to  establish  the  foregoing  facts,  that 
the  plaintiff  is  entitled  to  the  lien.     Fouch  v.  Wilson,  60  Ind.  64. 

2657.  Where  the  purchase  money  of  land  is  made  payable  in  sev- 
eral instalments  evidenced  by  promissory  notes  due  at  different  times, 
the  vendor,  being  the  holder  of  the  notes,  may  inforce  his  lien  against 
the  land  when  one  or  more  of  such  notes  have  become  due,  for  the  pay' 
ment  thereof  without  waiting  till  all  of  the  notes  have  matured.     Furr 
v.  Morgan,  55  Miss.  389.     Notice  of  non-pa3Tment  to  McE.,  an  indor- 
ser,  both   being   dated   back   to  July  third.     In  an  action  to  recover 
damages  for  negligence,  held,  that  as  the  note  was  made  payable  at 
defendant's  bank,  and  the  funds  not  being  there  to  meet  it  when  it  fell 
due,  a   demand   for  payment  was  not  necessai'y,  and  all  that  was  re- 
quired of  defendant  was  to  notify  the  in dorser  of  non-pa}7 ment ;  that 
notice  having  been  sent  on  the  next  business  day  it   was  in  time  ;  and 
that  if  the  mistake  occurred  as  alleged,  defendant  was  not  liable ;  but 
the  presumption  was  that  the  note  was  not  paid  by  mistake,  but  vol- 
untarily on  the  credit  of  the  maker,  in  which  case  the  payment  could 
not  be  retracted,  it  discharged  the  indorser  and  so  rendered  defendant 
liable.      Whiting  v.  City  Bank  of  Rochester,  77  N.  Y.  363. 

2658.  The  only  evidence  to  sustain  the  allegation  of  mistake  con- 
sisted  of  a  telegram  from  defendant's  assistant  cashier  to  plaintiffs, 
stating  that  defendant  had  remitted  for  the  note  by  mistake,  and  a  let- 
ter of  a  similar  purport  with  a  statement  that  the  note  had  been  pro- 
tested and  the  indorser  notified.     Evidence  was  given  by  plaintiffs  to 


OP   STANDABD   DECISIONS.  369 

the  effect  that  the  note  was  not  protested,  or  notice  of  non-payment 
mailed,  until  after  defendant  had  learned  of  the  failure  of  U.  Held, 
that  the  fact  that  there  was  a  mistake  was  not  so  conclusively  proved 
as  to  justify  the  court  in  refusing  to  submit  the  question  to  the  jury. 
Whiting  v.  City  Bank  of  Rochester,  77  N.  Y.  363. 

2659.  » The  holder  of  several  past  due  promissory  notes,  against 
the  same  parties,  may  bring  separate  actions  upon  each  ;  and  a  recovery 
in   one,  and   satisfaction   of  the  judgment,  is  not  a  bar  to  the  other 
actions.     The   fact  that  the  notes  were  given  upon  settlement  of  one 
and  the  same  demand  does  not  make  each  a  part  of  the  original  demand, 
so  as  to  compel  the  bringing  of  a  single  action  upon  all  of  the  notes. 
Nathans  \.  Hope,  77  N.  Y.  420. 

2660.  The  holder  of  a  promissory  note  owes  an  accomodation  in- 
dorser  no  active  duty  to  secure  or  protect  his  interest.     Smith  v.  Er- 
win,  77  N.  Y.  466. 

2661.  Where  a  promissory  note  is  made  in  this  State,  by  a  resident 
thereof,  bearing  date  here,  by  its  terms  payable  at  some  place  in  the 
State,  with  no  rate  of  interest  specified,  and  no  intention  of  the  maker 
existing  that  it  will  be  taken  elsewhere  for  discount,  if  it  is  first  nego- 
tiated in  another  State,  at  a  rate  of  interest  lawful  there,  but  greater 
than  that  allowed  by  the  usury  laws  of  this  State,  it  is  invalid.     Dick- 
inson v.  Edwards,  77  N.  Y.  573. 

2662.  Judgment   on  a  note  or  contract  operates  as  a  merger  of 
it;  and  when  the  judgment  is  binding  personally  it  can  be  introduced 
in  evidence,  and  relied  on  as  a  bar  to  a  second  suit  on  the  note.     El- 
dred  v.  Bank,  17  Wall.  U.  S.  545. 

2663.  Under  the  provision  of  the  statute  (1  R.  S.,  768  §  5),  pro- 
viding that  promissory  notes  made  payable  to  the  order  of  the  maker, 
or  of  a  fictitious  person,  if  negotiated  by  h.im,  shall   have  the  same 
validity,  as  against  him  and  "  all  persons  having  knowledge  of  the  facts, 
as  if  payable  to  bearer,"  the  facts  of  which  a  person  must  have  knowl- 
edge in  order  to  give  the  note  efficacy  as  against  him,  as  if  paj'able  to 
bearer,  are  simply  that  the  note  is  payable  to  the  order  of  the  maker 
or  of  a  fictitious  person.     Irving  Nat,  Bank  v.  Alley,  79  N.  Y.  536. 

2664.  A  note  payable  to  the   order  of  the  maker,  therefore,  as 
against  an  accommodation  indorser  having  knowledge  of  this  fact,  is 
to  be  considered  as  if  payable  to  bearer  ;  and  is  valid,  although  nego- 
tiated without  the  indorsement  of  the  payee.     Irving  Nat.  Bank  v. 
Alley,  79  N.  Y.  536. 

2665.  It   seems,  that   such   an  indorser,  as   against  a  bona  fide 
holder  would  be  estopped  from  denying  knowledge  for  the  purpose  of 
defeating  the  note ;  as  the  fact  appears  in  the  note,  and  he  will  not  be 
permitted  to  say  that  he  did  not  read  or  know  the  contents  of  the 
instrument   signed  by  him.      Irving  Nat.   Bank  v.  Alley,  79  N.  Y. 
536. 

2666.  Plaintiffs,  in  good  faith  and  without  notice  of  any  equities, 
received  from  the  payee,  in  exchange  for  two  promissory  notes  which 
they  surrendered  absolutely  and  unconditionally,  a  note  made  by  de- 
fendants.    In  an  action  thereon,  held,  that  the  plaintiffs  were  bona  fide 
holders  for  value  and  so  that  it  was  no  defence  that  the  note  was  exe- 
cuted for  the  accommodation  of  the  payee  and  had  been  fraudulently 
diverted  from  the  use  intended.     Nickerson  v.  Ruger,  84  N.  Y.  675. 

24 


370  MONBOE'S  DIGEST 

2667.  Sufficiency  of  consideration   for   promissory   note.     First 
Nat.  Sank  v.  Tisdale,  (Mem.)  84  N.  Y.  655. 

2668.  The  alteration  of  the  date  in  any  commercial  paper — though 
the  alteration  delay  the  time  of  payment — is  a  material  alteration,  and 
if  made  without  the  consent  of  the  party  sought  to  be  charged,  ex- 
tinguishes his  liability.    The  fact  that  it  was  made  by  one  of  the  parties 
signing  the  paper .  before  it  had  passed  from  his  hands,  does  not  alter 
the  case  as  respect  another  party  (a  surety),  who  had  signed  previously. 

Wood  v.  Steele,  6  Wall.  TJ.  S.  80. 

2669.  The  point  that  in  action  on    lost  note,  bond  required  by 
statute  was  not  given,  cannot  be  raised  for  first  time  on  appeal ;  it 
must  be  presented  by  exception.     Fordham  v.  Hendrickson,' (Mem.) 
84  N.  Y.  654. 

2670.  The  maker  of  a  promissory  note,  in  an  action  thereon  by  a 
transferee,  cannot  assail  plaintiff's  title  on  the  ground  that  the  transfer 
was  made  in  fraud  of  the  creditors  of  the  payee  ;  the  transfer  can  only 
be  assailed  on  that  account  by  the  creditors  or  some  one  representing 
them.     Sullivan  v.  Bonesteel,  79  N.  Y.  631. 

2671.  Promissory  notes  given  for  a  balance  found  due  on  settle- 
ment in  a  transaction  itself  forbidden  by  statute  and  illegal,  or  for 
money  lent  to  enable  a  party  to  pay  bills  which  the  person  taking  the 
promissory  notes  had  himself  assisted,  in  violation  of  statute,  to  issue 
and  circulate,  cannot  be  enforced.     Brown  v.  Turkington,  3  Wall.  U. 
S.  377. 

2672.  Where    a    negotiable  promissory  note,  obtained  from  the 
promisor  by  fraud,  has  been  transferred  to  a  third  party  before  its 
maturity,  the  burden  of  proof  is  upon  him  to  show  that  he  purchased 
it  for  value  in  good  faith  ;  and,  to  determine  this,  all  the  attendant 
circumstances  of  the  transaction  are  to  be  considered.     Sullivan  v. 
Langley,  75  Mass.  437. 

2673.  In  an  action  upon  a  promissory  note,  where  the  defence 
was  usury,  i.  e.,  that  the  note  was  executed  by  defendant  for  the  ac- 
commodation of  the  payee  and  was  transferred  by  him  at  a  usurious 
rate  of  interest,  there  was  no  finding,  or  request  to  find,  that  the  note 
was  accommodation  paper,  upon  which  question  the  evidence  was  con- 
flicting, but  the  referee  found  that  it  was  duly  made  and  delivered  to 
the  payee  and  by  him  duly  indorsed  to  plaintiff  before  maturity ;  to 
these  findings  there  were  no  exceptions.     Held,  that  this  court  had  no 
right,  for  the  purpose  of  reversing  the  judgment,  to  find  that  the  note 
was  not  business  paper ;  that,  prima  facie,  the  note  was  given  for 
value,  and  the  burden  was  upon  defendant  to  prove  the  defect  alleged. 
Bayliss  v.  Cockcroft,  81  N.  Y.  363. 

2674.  The  bonds  and  treasury  notes  of  the  United  States,  pay- 
able to  bearer  at  a  definite  future  time,  are  negotiable  commercial 
paper,  and  their  transferability  is  subject  to  the  commercial  law  of 
other  paper  of  that  character.      Vermilye  &  Co.  v.  Adams  Express  Co., 
21  Wallace,  U.  S.  138.     Where  such  paper  is  overdue,  a  purchaser 
takes  it  subject  to  the  rights  of  antecedent  holders  to  the  same  ex- 
tent as  in  other  paper  bought  after  its  maturity.     Ibid. 

2675.  No  usage  or  custom  among  bankers  and  brokers  dealing  in 
such  paper  can  by  proved  in  contravention  of  this  rule  of  law.     Ibid. 

2676.  It  is  their  duty,  when  served  with  notice  of  the  loss  of  such 


OF   STANDARD  DECISIONS.  371 

paper  by  the  rightful  owner,  after  maturity,  to  make  memoranda  or 
lists,  where  the  notice  identifies  the  paper,  to  enable  them  to  recall  the 
service  of  notice.  Ibid. 

2677.  A  purchaser  of  negotiable  paper  for  value,  without  notice, 
will  not  be  bound  by  any  secret  equity  therein  in  favor  of  a  third  per- 
son not  connected  with  the  legal  title  to  the  paper.    Where  a  trustee  as- 
signs negotiable  paper  in  violation  of  the  trust,  the  bona  fide  assignee 
will  take  it  free  from  the  trust,  whether  he  bought  it  before  or  after 
maturity,  and  whether  payable  in  this   State  or  elsewhere.     The  anti- 
commercial  statutes  of  this  State  apply  only  to  defences  between  those 
connected  with  the  legal  title,  and  not  to  those  asserting  equities  in 
such   paper.     The  same  is  true  as  to  that  principle  of  law  merchant 
which  requires  the  purchase  to  be  made  before  maturity.     Hibernian 
Bank  v.  Everman,  et  al.,  52  Miss.  500. 

2678.  A  partner  who  held  notes  which,  both  by  law  and  contract 
with  his  copartner,  he  was  bound  to  apply  to  the  paj^ment  of  the  liabil- 
ities of  the  firm,  fraudulently  transferred  and  converted  them  to  his 
own  use.     By  subsequent  transfer  the}'  came  into  possession  of  the 
Hibernian    Bank.     The   injured    copartner   for   himself  and  the  firm 
creditors,  sought  to  have  them  applied  to  the  firm  liabilities.     Held, 
that  there  being  nothing  on  the  face  of  the  notes  to  indicate  their 
fiduciary  character,  the  bank  acquired  good  title.     Ibid. 

2679.  The  doctrine  of  Us  pendents  cannot  apply  to  a  party  pur- 
chasing negotiable  paper  beyond  the  jurisdiction,  even  if  it  applies  to 
a.  purchase  within  the  State.     It  is  a  mere  representative  of  value  and 
has  no  situs,  and  unless  impounded  in  the  hands  of  a  receiver,  or  other- 
wise placed  under  the  control  of   the   Court,  an  innocent  purchaser 
cannot  be  affected  by  notice  of  the  litigation.     Hibernian  Bank  v.  Ev- 
erman, et  al.,  52  Miss.  500. 

2680.  A  purchaser  of  negotiable  paper,  though  a  broker,  is  not  a 
lender  of  money  on  it,  and  if  he  purchase  honestly  and  without  notice 
of  equities — there  being  nothing  on  the  face  of  the  draft  to  awaken 
suspicion — he  can  recover  the  full  amount  of  the  paper.     Tilden  v. 
Blair,  21  Wall.  IT.  S.  241. 

2681.  The  assignment  of  a  negotiable  note  before  its  maturity, 
raises  the  presumption  of  a  want  of  notice  of  any  defence  to  it ;  and 
this  presumption  stands  till  it  is  overcome  by  sufficient  proof.     Car- 
penter v.  Longan,  16  Wall.  271. 

2682.  A  bona  fide  holder  of  negotiable  paper  purchased  before  its 
maturity  upon  an  unexecuted  contract,  on  which  part  payment  only 
had  been  made  when  he  received  notice  of  fraud,  and  a  prohibition  to 
pay,  is  protected  only  to  the  amount  paid  before  the  receipt  of  such 
notice.     Dresser  v.  Missouri  &  Iowa  Railway    Construction   Co.,  (3 
Otto.)  U.  S.  Rpt.  92,  93. 

2683.  The  holder  of  a  note  which  is  secured  by  mortgage  may 
proceed  at  law  and  in  equity  at  the  same  time,  until  he  obtains  actual 
satisfaction  of  the  debt.     Ober  v.  Gallagher,  93  U.  S.  199. 

2684.  Where  the  declaration  against  the  assignor  of  a  promissory 
note  upon  his  contract  of  assignment  made  in  Illinois  avers  that  a  suit 
against  the  maker  of  the  note  would  have  been  unavailing,  and  the  de- 
fendant takes  issue  thereon,  the  record  of  an  adjudication  in  bank- 
ruptcy against  the  maker  of  the  note  before  suit  could  have  been 


372  MONROE'S  DIGEST 

brought  thereon  is  not  only  competent,  but  conclusive  evidence  for  the 
plaintiff.      Wills,  et  al.  v.  Claflin,  et  al,  92  U.  S.  135. 

2685.  Where  a  note,  deposited  in  bank  for  collection  by  its  ownerr 
•was  paid  by  a  person  not  a  party  thereto,  with  the  intention  of  having 
it  remain  as  an  existing  security,  and  the  money  so  paid  was  received 
by  the  owner  of  the  note, — Held,  that  such  person  thereby  became  the 
purchaser  of  the  note,  and  its  negotiability  remains  after  as  before 
maturity,  subject  to  the  equities  between  the  parties.     Dodge,  et  al.  v. 
Freedmans  Savings  &  Trust  Co.,  93  U.  S.  379. 

2686.  In  law,  a  person  with  whom  a  note  is  deposited  for  collec- 
tion is  the  agent  of  the  holder,  and  not  of  the  maker.     The  maker  has 
no  interest  in  it,  except  to  pay  the  note.     Failing  to  do  this,  he  leavea 
it  to  be  dealt  with  as  others  interested  may  choose.     Ibid. 

2687.  A  note  payable  to  bearer,  though  overdue  and  dishonored, 
passes  by  delivery  the  legal  title  to  the  holder,  subject  to  such  equities 
as  may  be  asserted  by  reason  of  its  dishonor,  and  any  one  disputing 
the  title  of  the  holder  of  such  paper  takes  the  burden  of  establishing,, 
by  sufficient  evidence,  the  facts  necessary  to  defeat  it.     National  Bank 
of  Washington  v.  Texas,  20  Wall.  U.  S.  72. 

2688.  The  doctrine  applied  to  certain  of  the  bonds  known  as  the 
"  Texas  Indemnity  Bonds."     Ibid. 

2689.  A  surety  is  not  discharged  by  a  contract  between  his  prin- 
cipal and  their  common  obligee  which  does  not  place  him  in  a  different 
position  from  that  which  he  occupied  before  the  contract  was  made. 
Roach  v.  Summers,  20  Wall.  U.  S.  165. 

2690.  Indorser  of  a  promissory  note,  though  an  indorser  for  ac- 
commodation only,  is  not  a  "  security  "  within  the   meaning  of  that 
word  as  used  in  a  statute  of  Arkansas,  which  declares  that  any  person 
bound  as  "  security  "  for  another  on  any  bond,  bill,  or  note,  may  require 
the  person  having  the  right  to  sue  on   the  instrument,  to  proceed 
against  the  principal  under  penalty  of  the  surety's  being  exonerated. 
Ross  v.  Jones,  22  Wall.  U.  S.  576. 

2691.  Consideration  need  not  be  alleged.     The  omission  of  the 
words  "  for  value  received  "  in  a  promissory  note,  is  not  material. 
Ibid. 

2692.  A  description  of  the  note  is  sufficient  without  an  averment 
of  the  consideration.     Underhill  v.  Phillips,  17  N.  Y.  Sup.  Ct.  Reps. 
591. 

2693.  Defendant  executed  a  power  of  attorney,  by  which  he  ap- 
pointed one  Packard  his  "  true  and  lawful  attorney  for  me  and  in  my 
name,  and  place,  and  stead,  to  draw  and  indorse  any  check  or  checksr 
promissory  note  or  notes  on  any  bank  in  the  city  of  New  York,  in 
which  I  have  an  account,  and  especially  in  the  Irving  National  Bank 
of  said  city,  and  to  do  any  and  all  matters  and  things  connected  with 
my  account  in  said  Irving  National,  or  any  other  bank  in  said  city,, 
which  I  myself  might  or  could  do,  etc."     Held,  that  Packard  was  not 
authorized  thereby  to  draw  or  indorse  any  check  or  note,  except  such 
as  were  pa}Table  at  a  bank  in  which  the  defendant  had  an  account.     17 
N.  Y.  Sup.  Ct.  593. 

2694.  Possession  of  a  note  is  prima  facie  evidence  of  ownership, 
and  in  an  action  thereon  this  title  will  be  respected  until  denied  by 
pleading.     Crosthwait,  etc.  v.  Misener,  13  Bush,  Ky.  543. 


OF   STANDARD   DECISIONS.  373 

2695.  The  alteration  of  a  writing,  after  delivery,  by  a  third  per- 
son, without  the  knowledge  or  consent  of  the  obligee,  does  not  render 
the  contract  void,  or  release  the  obligors  from  liability.     Blakely  v. 
Johnson,  13  Bush,  Ky.  197. 

2696.  A  material  alteration  of  a  completed  note  by  the  principal 
obligor,  after  it  had  been  signed  by  his  surety,  and  without  his  consent 
or  knowledge,  before  its  delivery  to  the  payee,  renders  it  void  as  to  the 
surety.     The  words  "  interest  to  be  paid  semiannually,"  were  added  to 
the  note  in  this  case,  but  under  such  circumstances  as  not  to  entitle 
the  surety  to  recover  back  the  amount  of  the  note  and  interest  paid 
by  him,  without  any  knowledge  of  the  fact  that  the  note  had  been 
altered  by  the  principal  after  the  surety  signed  it.     Blakely  v.  Johnson, 
13  Bush,  Ky.  192. 

2697.  If,  on  the  transfer  of  negotiable  paper,  an  indorsement  is 
omitted  through  accident,  mistake  or  fraud,  a  good  title  will  pass  in 
-equity  by  mere  delivery.     Hughes  v.  Nelson,  29  N.  J.  547. 

2698.  An  instrument  in  the  following  form  is  not  a  negotiable  in- 
strument:     "$100.  Neosho,  Mo.,  Aug.  29,  1874. —-after  date, — 
promise  to  pay  to  the  order  of dollars,  for  value  received,  negotia- 
ble and  payable,  without  defalcation  or  discount,  with  ten  per  cent,  in- 
terest thereon  from  maturity,  till   paid  ;  and  if  said  interest  shall  re- 
main  unpaid  for  the  time  of  one  year  from  the  maturity  of  this  note, 
then  the  same  to  become  as  principal  and  to  bear  the  same  rate  of  in- 
terest as  principal,  and  to  be  compounded  annually;  and  we  do.  each 
and  severally  waive  any  and  all  exemptions  under  and  by  virtue  of  any 
execution,  exemption,  homestead  or  stay  laws  of  the  State  of  Missouri, 
or  that  of  any  other  State  •,  and  we  do  each  further  promise  and  agree 
to  pay  a  reasonable  attorney's  fee   for  the  bringing  suit  in  collection 
After  the  same  shall  become  due,  pa}rable  at  the  Newton  County  Bank 
of  Samstag  &  Stein."     See  First  Nat.  Bank  of  Trenton  v.  Gav,  63  Mo. 
33.     And  the  indorsement  by  the   payee  simplj'  makes  him  liable  as 
assignor  to  pay  after  the  exercise  of  due  diligence  by  the  holder,  and 
failure  to  collect  from  the  maker  after  suit,  or  in  case  of  the  insolvency 
or  non-residence  of  the  maker,  so  that  a  suit  would  have  been  unavail- 
ing.    Samstag,  et  al.  v.  Conley,  et  al.,  64  Mo.  476. 

2699.  Bills  or  notes  bearing  the  stamp  of  a  bank  may  still  be  put 
in  circulation.     Barthe  v.  Armstrong,  5  R.  L.  213 ;  C.  C.  1869. 

2700.  The  payee  of  certain  promissory  notes,  having  assigned  the 
same  to  another  by  a  blank  indorsement,  executed  to  the  assignee, 
to  secure  the  paj^ment  of  such  notes,  a  mortgage  on  certain  real  estate, 
•conditioned  that  if  the  payee  "  shall  pay  said  notes  according  to  their 
tenor  and  effect,  or  cause  the  same  to  be  paid,  this  mortgage  shall  be 
void."  etc.     Held,  in  an  action  upon  such  notes,  and  to  foreclose  such 
mortgage,  by  the  assignee,  against  the  maker  and  payee,  that  the  plain- 
tiff is  entitled  to  personal  judgment  against  both  defendants  for  the 
amounts  due  on  such  notes,  the  foreclosure  of  such  mortgage  against 
the  payee  and  execution  over  against  the  maker  for  any  part  of  such 
judgment  remaining  unsatisfied  by  the  sale  of  the  mortgaged  premises. 
Held,  also,  that  the  liability  of  such  payee  is  primary,  and  not  merely 
that  of  an  indorser.     Robertson  v.  Cauble,  57  Ind.  420;  also,  Zekind 
v.  Newkirk,  12  Ind.  544;  Burnham  v.  Gullentine,  11  Ind.  295;    Wat- 
son v.  Beabout,  18  Ind.  281. 


374  MONROE'S  DIGEST 

2701.  Defendant  gave  to  Hevner  a  negotiable  note  in  payment  of 
a  patent  which  defendant  alleged  was  a  fraud ;  plaintiff  being  about  to- 
discount  the  note,  defendant  told  him  not  to  buy  it,  that  Hevner  had 
promised  when  the  sale  was  made  that  he  would  not  negotiate  it ;  that 
if  plaintiff  bought  it  he  would  buy  a  lawsuit ;  no  notice  was  given  to 
plaintiff  that  the  sale  was  fraudulent.     Plaintiff  having  discounted  the 
note,  Held,  in  a  suit  on  it,  that  these  facts  were  no  defence,  although 
Hevner  had  committed  a  fraud  on  defendant  in  the  sale.     A  pa.ro! 
agreement,  although  made  at  the  time  of  making  negotiable  paper, 
that  the  payee  will  not  negotiate  it  and  would  renew  it,  etc.,  is  admissi- 
ble  to  vary  the  effect  of  the  paper.     Heist  v.  Hart,  73  Penn.  286. 

2702.  A  negotiable  instrument,  payable  to  bearer,  or  indorsed  in 
blank,  produced  by  a  transferee  suing  to  recover  its  contents,  is,  when 
received  in  evidence,  clothed  with  the  prima  facie  presumption  that  he 
became  the  holder  of  it  for  value  at  its  date,  in  the  usual  course  of 
business,  without  notice  .of  anything  to  impeach  his  title.     Collins  v. 
Gilbert,  94  U.  S.  153. 

2703.  The  title  of  a  bona  fide  holder  for  value  of  an  accepted 
draft,  indorsed  in  blank,  is  not  affected  by  the  fact  that  the  party  from 
whom  he  received  it  before  its  maturity  had  possession  of  it  for  certain- 
purposes  and  misappropriated  it.     Ibid. 

2704.  Negligence  may  consist  in  either  failing  to  do  what,  under 
the  circumstances,  a  reasonable  and  prudent  man  would  ordinarily 
have  done,  or  in  doing  what  he  would  not  have  done.     Railroad  Com- 
pany v.  Jones,  95  U.  S.  439. 

2705.  A  bona  fide  purchaser  of  negotiable  paper  for  value,  before 
maturity,  takes  it  freed  from  all  infirmities  in  its  origin,  unless  it  is- 
absolutely  void,  for  want  of  power  in  the  maker  to  issue  it,  or  its  cir- 
culation is  by  law  prohibited  by  reason  of  the  illegality  of  the  consid- 
eration.    Municipal  bonds,  paj^able  to  bearer,  are  subject  to  the  same 
rules  as  other  negotiable  paper.     Though  he  may  have  notice  of  in- 
firmities in  its  origin,  a  purchaser  of  a  municipal  bond  from  a  bona 
fide  holder,  who  obtained  it  for  value  before  maturity,  takes  it  as  freed 
from  such  infirmities  as  it  was  in  the  hands  of  such  holder.     A  pur- 
chaser of  negotiable  securities  before  their  maturity,  whatever  may 
have  been  their  original  infirmity,  can,  unless  he  is  personally  charge- 
able with  fraud  in  procuring  them,  recover  against  the  maker  the  full 
amount  of  them,  though  he  may  have  paid  therefor  less  than  their  par 
value.     Cromwell  v.  County  of  Sac.,  96  U.  S.  51. 

2706.  Where  the  title  of  the  original  holder  of  negotiable  instru- 
ments, which  are  infected  with  fraud,  invalidity,  is  destroyed,  that  of 
every  subsequent  holder  which  rests  on  that  foundation,  and  no  otherr. 
falls  with  it.     Commissioners  of  Marion  County  v.  Clark,  94  U.  S.  278. 

2707.  Where  the  first  indorser,  without  notice  of  any  prior  equi- 
ties between  the  original  parties,  purchases,  for  value,  a  negotiable  in- 
strument, the  second  indorsee,  who  acquires  it  before  it  is  due,  and  for 
value,  takes   a  good  title,  although  he  had   notice  of  such  equities. 
Ibid. 

2708.  Bonds  issued,  pursuant  to  legislative  authority,  by  a  mu- 
nicipal corporation  in  aid  of  a  railroad  company,  are  negotiable  instru- 
ments.    Ibid. 

2709.  A  promissory  note  in  the  ordinary  form,  signed  by  a  mar- 


OF   STANDARD  DECISIONS.  375 

ried  woman,  made  payable  to  the  order  of  her  husband,  and  indorsed 
and  presented  for  discount  by  him,  is  prima  facie  a  nullity  ;  to  give  it 
vitality  and  effect  it  must  be  made  to  appear  by  evidence  aliunde  the 
instrument,  that  it  was  made  in  her  separate  business  or  for  the  benefit 
of  her  separate  estate.  The  fact  that  she  owns  separate  estate  is  not 
alone  sufficient  to  g-ive  it  validity.  Accordingly,  Held,  in  an  action 
upon  two  such  notes  against  the  maker,  that  a  charge  to  the  jury  to 
the  effect  that  defendant  gave  the  notes  to  her  husband  with  a  view  of 
having  them  discounted  was  calculated  to  convey  the  impression  that 
she  was  the  principal,  and  whatever  was  done  was  for  her  benefit,  was 
an  error.  Second  Nat.  Bank  v.  Miller,  18  Sickels,  N.  Y.  634. 

2710.  When  it  appears  from  the  complaint  that  one  of  the  two  de- 
fendants made  the  note  in  suit  in  favor,  but  not  to  the  order,  of  the 
plaintiff,  the  payee  therein  named  ;  that  the  other  defendant  indorsed 
it,  and  that  it  was  thereupon  delivered  to  the  plaintiff,  Held,  that,  inas- 
much as  such  an  indorsement  before  delivery  imparts  the  liability  of  a 
maker,  these  averments,  taken  together,  must  be  deemed  equivalent  to 
an  allegation  that  the  two  defendants  made  the  promissory  note,  and 
that  both  are  jointly  liable  as  makers  thereof.     Although  not  negoti- 
able, the  instrument  is  a  promissory  note,  and  as  such  imparts  a  con- 
sideration, though  none  is  expressed.     Want  of  consideration  is  matter 
of  defence. 

2711.  A  question  of  pleading  must  be  determined  according  to  the 
course  of  practice  prevailing  in  the  courts  of  this  State,  although  the 
obligation  sued  upon,  i.  e.,  a  promissory   note,  was  made  in  another 
State.     In  the  absence  of  proof  to  the  contrary,  it  will  be  presumed 
by  the  courts  of  this  State  that  the  law  of  another  State  in  regard  to 
a  subject-matter  before  the  court,  is  the  same  as  the  law  in  this  State. 
Paine  v.  Noelke,  53  Howard's  N.  Y.  273  ;  also,  54  Ind.  333. 

2712.  A  promissory  note,  in  form  negotiable,  is  not  rendered  non- 
negotiable  by  being  made  payable  at  one  or  two  years  after  date,  nor 
by  the  statement  on  its  face  that  it  was  given  for  and  secured  by  a  lien 
on  real  estate.     Duncan  v.  Louisville,  etc.,  13  Bush,  Ky.  378. 

2713.  Note  payable  one  day  after  date  becomes  due  on  day  after  it 
was  made,  and  cannot  be  sued  until  the  day  following.     If  such  note 
was  not  made  on  the  day  of  its  date,  it  cannot  be  sued  until  the  second 
day  after  it  was  in  fact  made.     JRuejle  v.  Moore,  et.  al.,  58  Ga.  94. 

2714.  The  fact  that  notes  are  given   for  a  larger  sum  than  was 
agreed  by  the  parties  to  be  due  for  land  purchased,  does  not  render 
them  void,  but  goes  to  the  consideration,  partially,  and  there  may  be  a 
recovery  pro  tanto.     McGord  v.  Crooker,  83  111.  556. 

2715.  When  one  signs  an  obligation  describing  himself  as  princi- 
pal, he  renounces  his  right  as  surety,  and  parol  evidence  showing  that 
his  agreement  was  that  of  surety  only,  and  that  his  liability  was  ex- 
tinguished by  reason  of  an  extension  granted  to  the  principal  without 
his  knowledge,  is  inadmissible,  as  varying  the  terms  of  his  written  con- 
tract.    And  more  especially  is  this  true  where  he  expressly  stipulates 
in  the  instrument  that  no  extension  of  time  shall  affect  his  liability. 
And  it  is  immaterial  in  such  case  that  the  instrument  signed  is  a  note 
and  not  a  specialty.     McMillan   v.  Parkell,  64  Mo.  286 ;   Claremont 
Sank  v.  Wood,  10  Vt.  582 ;  Picot  v.  Signiago,  22  Mo.  587. 

2716.  A  promissory  note   made  payable  a  specified  number  of 


376  MONROE'S  DIGEST 

months  after  date,  without  grace,  falls  due  on  the  same  day  of  the 
month  as  that  of  its  date.  Boehner  v.  Knickerbocker  Life  Ins.  Co.,  18 
Sickels,  N.  Y.  II.  160. 

2717.  Equity  may  entertain  a  bill  to  rectify  a  written  instrument 
drafted,  by  accident,  mistake,  or  fraud,  otherwise  than  according  to 
the  agreement  of  the  parties,  but  if  a  person   deliberately  execute  a 
particular  instrument,  such  as  a  promissory  note,  intending  it  to  be 
•what  it  is  in  reality,  parol  testimony  is  inadmissible,  either  at  law  or 
in  equity,  to  change  or  alter  its  legal  effect.     Bridges  v.  JRobinson,  2 
Tenn.  Eq.  720. 

2718.  The  statute  (Gen.  Statutes,  343,  §  2)  which  provides  that 
any  promissory  note  payable  on  demand,  which  remains  unpaid  four 
months  from  its  date,  shall  be  considered  overdue  and  dishonored,  does 
not  affect  the  rights  of  the  original  parties  to  the  note,  but  only  those 
of  third  parties,  as  indorsers,  guarantors  or  purchasers.     Seymour  v. 
Continental  Life  Ins.  Co.,  44  Conn.  300. 

2719.  The  Michigan  Statute  (Comp.  L.,  §  1565-6)  imposing  con- 
ditions on  the  transfer  of  patent  rights  by  requiring  notes  given  there- 
for to  show  it,  and  making  it  a  misdemeanor  to  take  or  transfer  them 
otherwise,  is  unconstitutional,  as  impairing  rights  that  are  regulated 
and  protected  by  Congress.     Fraud  is  not  to  be  presumed  against  a 
patent  right  note,  but  must  be  proved.     Cranson  v.  Smith,  37  Mich. 
309. 

2720.  To  a  declaration  on  a  promissory  note,  a  defence  that  the 
note  was  made  in  a  foreign  State,  upon  a  consideration  which  was  void 
under  a  law  of  that  State,  should  be  specially  pleaded,  and  it  cannot  be 
received  under  the  general  issue.     Held,  that  the  issue  was  immaterial. 
Moop  v.  Delahaye,  2  Colorado,  307. 

2721.  The  plaintiffs  took  the  individual  note  of  B.,  on  account  of 
the  goods,  but  it  was  not  given  or  taken  as  payment  of  the  account. 
Held,  that  this  did  not  discharge  the  liability  of  the  corporation.     B. 
having  gone  into  bankruptcy,  the  plaintiffs  presented  the  note  against 
his  estate,  and  received  a  dividend  upon  it.     Held,  they  might  show 
that  they  did  this  under  the  advice  of  legal  counsel,  and  upon  an  opin- 
ion given  that  it  would  not  prejudice  their  claim  against  the  corpora- 
tion.    Northford  Rivet  Co.  v.  Blackman  M'fg  Co.,  44  Conn.  183. 

2722.  Where  a  promissory  note  for  dollars,  made  in  Georgia,  in 
January,  1863,  is  shown  to  have  been  solvable  in  Confederate  treasury 
notes,  the  sum  thereby  payable  in  actual  money  must  tie  ascertained  by 
the  value  in  coin  or  legal  currency  of  the  United  States,  at  the  time 
when  and  the  place  where  the  note  was  made,  of  such  treasury  notes, 
•equal  in  nominal  amount  to  the  number  of  dollars  specified.     Stewart 
v.  Salamon,  94  U.  S.  434. 

2723.  Where  a  payment  is  indorsed  in  the  same  monetary  terms 
which  are  used  in  the  note  itself,  the   presumption  is  that  it  was  in- 
tended to  be  credited  in  the  same  circulating  medium.     If  the  parties 
intended  otherwise,  some  proof  on  the  subject   should   be   presented. 
Ibid. 

2724.  Accordingly,  where  a  promissory  note  for  dollars,  shown  to 
be  solvable,  at  the  time  it  was  made,  in  Confederate  treasury  notes,  had 
a  receipt  for  a  specified  number  of  dollars  indorsed  upon  it,  it  was  held 
that,  in  the  absence  of  proof,  the  principal  designated  on  the  face  of 


OP   STANDARD   DECISIONS.  377 

the  note  was  reduced  only  by  the  amount  specified  in  the  receipt. 
Ibid. 

2725.  Where,  at  the  time  of  making  and  indorsing  a  promissory 
note,  a  written  contract  in  relation  thereto  is  entered  into  by  the 
parties,  parol  testimony  varying  or  contradicting  its  terms  is  not  ad- 
missible.    Brown  v.  Spo/ord,  95  U.  S.  474. 

2726.  In  the  absence  of  proof  to  show  when  promissory  notes  were 
transferred  by  the  payee,  the  law  presumes  that  they  were,  when  under- 
due,  taken  in  good  faith  by  the  transferee,  without  notice  of  any  in- 
firmity attaching  to  them,  and  he  is  entitled  to  the  benefit  of  the  deed 
of  trust  given  to  secui-e  them.     New  Orleans  Canal  and  Hanking  Co.  v. 
Montgomery,  95  U.  S.  16. 

2727.  In  a  suit  upon  a  promissory  note,  the  court  below  charged 
the  jury  that  if  the  defendant,  without  making  any  statement  of  his  in- 
tention in  so  doing,  wrote  his  name  on  the  back  of  the  note  before  its 
delivery  to  the  payee,  he  is  presumed  to  have  done  so  as  the  surety  of 
the  maker,  for  his  accommodation,  and  to  give  him  credit  with  the 
payee,  and  that,  if  such  presumption  is  not  rebutted  by  the  evidence 
he  is  liable  on  the  note  as  maker.     Held,  that  the  charge  was  not 
erroneous.     Good  v.  Martin,  95  U.  S.  90. 

2728.  In  action  by  a  savings  bank  on  a  promissory  note,  against 
B.,  as  second  indorser,  it  appeared  that  the  note,  which  purported  on 
its  face  to  be  secured  by  a  mortgage  of  real  estate,  was  payable  to  A., 
or  order ;  that  A.  borrowed  money  of  B.,  indorsed  the  note  to  B.'s 
order,  and  delivered  it  to  him  with  an  assignment  of  the  mortgage  and 
note,  as  collateral  securit}r ;  that  afterwards  A.  paid  B.  the  money 
borrowed,  and  B.  wrote  his  name  on  the  back  of  the  note  under  the 
name  of  A.  and  delivered  it  to  him,  and  also  executed  to  him  an  assign- 
ment of  the  mortgage  and  note  ;  that  A.  thereupon,  and  before  the  ma- 
turity of  the  note,  delivered  it  to  the  plaintiff  for  a  valuable  considera- 
tion, and  executed  to  it  an  assignment,  in  which  A.  was  described  as 
mortgagee  named  in,  and  assignee  of,  the  mortgage  ;  that  A.  was  then 
a  trustee  of  the  plaintiff  bank  and  one  of  its  conveyancers,  but  took 
no  part  in  the  management ;  that  the  treasurer  of  the  bank  did  not 
notice  the  signature  of  B.  when  he  took  the  note  and  relied  on  the 
mortgage  alone  as  security.     B.  testified  that  he  did  not  intend  to  in- 
dorse the  note,  but  only  to  assign  it  to  A.     Demand  was  made  on  the 
maker  of  the  note  and  due  notice  given  to  B.     Held,  that,  on  these 
facts,  the  action  might  be  maintained  ;  and  that  no  fact  appeared  which 
would  warrant  a  jury  in  finding  for  the  defendant.      West  Boston  Savings 
Bank  v.  Thompson,  124  Mass.  506. 

2729.  In. an  action  by  the  payee  on  a  promissory  note,  signed  on 
the  back  thereof,  by  the  defendant  before  delivery,  oral  evidence  is  in- 
admissible to  show  that  the  payee  agreed  to  treat  him  as  an  indorser, 
and  not  as  an  original  promisor.     Allen  v.  Brown,  124  Mass.  77. 

2730.  A  person,  not  the  payee,  who  before  the  St.  of  1874,  c.  404, 
wrote  his  name  upon  the  back  of  a  negotiable  promissory  note  at  its 
inception,  and  before  its  delivery,  is  liable  as  an  original  promisor;  and 
parol  evidence  is  inadmissible  to  show  that  he  wrote  his  name  upon 
the  note,  not  with  the  intention  of  adding  his  personal  responsibility 
to  its  security,  but  merely  in  approval  of  it  as  the  president  of  a  com- 
pany ;  or  that  the  treasurer  issued  the  note  in  violation  of  a  by-law  of 


378  MONROE'S  DIGEST 

the  company  ;  the  plaintiff,  the  payee  of  the  note,  having  no  knowl- 
edge of  the  facts.     Gilson  v.  Stevens  Machine  Co.,  124  Mass.  546. 

2731.  If  a  promissor}'  note  is  made  payable  on  condition  that  a, 
proceeding  pending  in  the  courts  is  decided  in  favor  of  the  payee,  and 
the  proceeding  is  decided  against  him,  the  note  cannot  be  enforced. 
Frisbie  v.  Moore,  51  Cal.  516. 

2732.  A  note  on  which  the  interest  is  pa}rable  quarterly  at  the 
legal  rate,  is  not  usurious.     Mowry  v.  Shumway,  44  Conn.  493  ;  alsor 
Bridgeport  v.  Housatonic  JR.  R.  Co.,  15  Conn.  503  ;  and  Rose  v.  Bridge- 
port, 17  'Conn.  247  ;  and  Brooks  v.  Holland,  21  Conn.  388. 

2733.  A  rule  which  would  require  the  maker  of  a  note  to  act  after 
its  maturity,  and  before  pa}'ment,  with  reference  to  the  equitable  rights- 
attaching  to  it  in  the  hands  of  every  one  who  may  have  had  it  by 
assignment,  would  be  destructive  of  the  negotiability  of  such  instru- 
ments.    Long  v.  Walker,  47  Texas,  173. 

2734.  Payment  of  a  note  made   by  partners  is  received  by  an 
agent  in  Confederate  currency,  upon  condition  that  if  the  principal  re- 
fuses to  receive  it,  it  is  to  be  returned  ;  and  a  receipt  is  indorsed  on 
the  note  and  delivered  to  one  of  the  partners.     The  principal  declines 
to  receive  it,  and  the  agent  returns  the  currency  to  another  partner, 
who  gives  the  partnership  promise  to  pay  the  amount  of  the  note  in 
the  new  issue  of  Confederate  notes,  which  the  principal  was  willing  to 
receive,  and  this  is  received  by  the  principal.     Held,  1.     The  delivery 
of  this  second  promise  and  its  reception  by  the  principal  is  not  a  dis- 
charge of  the  note,  unless  it  was  so  intended  and  agreed  by  the  prin- 
cipal ;  and  this  must  be  clearly  shown  by  the  makers  of  the  note. 
Lewis,  et  al.  v.  Davisson's  Ex*r,  29  Grattan  (Va.)  216. 

2735.  The  deliver}'  of  the  note  by  the  agent  to  one  of  the  partners, 
and  its  cancellation  and  possession  by  him,  will  not  prevent  an  action 
upon  it  by  the  principal.     Ibid. 

2736.  In  an  action  by  a  bank  against  an  indorser  of  negotiable 
notes,  which  were  discontinued  in  Alexandria,  and  fell  due  during  the 
war,  when  the  indorser  was  within   the   Confederate  lines,  to  prove 
notice  of  protest  to  the  indorser  within  a  reasonable  time  after  the  war 
ceased,  the  plaintiff  offered  in  evidence  a  resolution  of  the  stockholders, 
adopted  at  a  meeting  held  on  the  18th  of  July,  1865,  at  which  the  in- 
dorser was  present  at  a  previous  period  of  the  meeting,  though  it  did 
not  appear  he  was  present  when  the  resolution  was  adopted,  by  which 
those  notes  and  others  paid  by  the  maker  at  a  branch  of  the  plaintiff's 
bank  within  the  Confederate  lines,  are  declared  still  to  be  due  to  the 
bank.     Held,  1.  There  being  no  proof  that  the  indorser  had  any  knowl- 
edge of  the  resolution,  it  was  not  due  notice  to  him  of  the  dishonor  of 
the  notes. 

2737.  2.  The  knowledge  of  non-payment  of  a  protested  note  is  not 
sufficient  to  bind  the  indorser.     He  must;  have  notice  that  he  is  looked 
to  for  payment.     3.  The  resolution  having  been  adopted  July  18th, 
1865,  at  least  two  months  after  communication  had  been  opened  be- 
tween the  bank  and  the  indorser,  it  was  not  in  time,  if  it  had  been  suf- 
ficient as  a  notice.     Bank  of  Old  Dominion  v.  Me  Veigh,  29  Grattan 
(Ya.)  546. 

2738.  In  suit  on  the  following  note,  to  wit :  "  Three  months  from 
date  promise  to  pay  to  order  of  A.  and  B.  fifteen  dollars,  etc.,  etc.,  with 


OF  STANDARD   DECISIONS.  379 

interest  at  ten  per  cent,  per  annum,  and  if  interest  be  not  paid  annually 
to  become  as  principal,"  etc.  (Signed)  "  P.  H.  Ammerman,  executor 
of  last  will  of  James  Johnson,  deceased,"  it  was  held  that  as  the  instru- 
ment contained  no  words  showing  an  intention  to  charge  the  estate,, 
the  terms  "  executor,"  etc.,  should  be  treated  merely  as  descriptio  per- 
sonae ;  that  the  fact  of  payment  to  be  made  at  a  future  day,  with  the 
interest  named,  might  of  itself  be  sufficient  to  show  a  personal  under- 
taking of  the  executor ;  that  the  note  of  itself  imported  a  considera- 
tion, and  that  it  devolved  on  the  maker  and  competent  for  him,  if  he 
designed  to  set  up  that  defence,  to  show  that  as  his  individual  contract 
it  was  without  consideration,  and  that  the  payee  agreed  to  look  only  on 
the  estate.  And  in  such  case,  where  the  consideration  of  the  note  ac- 
crued after  the  death  of.  the  testator,  the  administrator  will  in  the  first 
instance  be  liable  de  bonis  propriis,  but  he  may  reimburse  himself  out 
of  the  assets  of  the  deceased. 

2739.  An  administrator  can  maintain  an  action  in  his  own  name 
on  a  note  made  payable  to  him  as  administrator  or  executor,  the  offi- 
cial words  being  treated  as 'mere  surplusage  or  as  descriptio  per sonse. 
Rittenhouse  v.  Ammerman,  64  Mo.  197. 

2740.  An   instrument   in   the   form  of  a  promissory  note,  begin- 
ning,    "  We  as  trustees,  but  not   Individually,  promise  to  pa}r,"  and 
signed  u  A.,  B.  and  C.,  trustees,"  purported  on  its  face   to  be  secured 
by  mortgage  of  real  estate.     A.,  B.  and  C.  were  trustees  of  a  land 
association,  and  purchased  of  the  promisee  a  parcel  of  land,  the  deed  of 
which   ran  to  them  as  trustees  of  the  association,  and  set  forth  their 
powers.     They  mortgaged  the  land  to  the  grantor,  and  gave  the  above 
instrument,  secured  by  the  mortgage,  in  part  payment  of  the  purchase 
money.     Held, inaction  against  the   makers   of  the   instrument,  by  an 
indorsee,   who  took   it  after  maturity,  that   they  were  not  personally 
liable  thereon.     Shoe  &  Leather  National  Bank  v.  Dix,  123  Mass.  148. 

2741.  It  is  a  good   consideration  for  a  promissory  note  that  the 
promisor  gave  it  at  the  request  and  for  the  benefit  of  his  son,  who  was- 
in  the  employ  of  the  promisee,  to  be  applied  by  the  latter  toward  the 
payment  of  a  defalcation  of  the  son,  the  note  being  so  credited  to  the 
son  on  the  books  of  the  promisee.     Popple  v.  Day,  123  Mass.  520. 

2742.  It  is  a  good  consideration  for  a  promissory  note  given  by 
the  promisor,  who  was  an  assignee  of  a  bankrupt,  toward  the  payment 
of  moneys  received  and   misused  by  him,  that  the  promisee,  who  was- 
his  co-assignee,  refrained   from  pressing  proceedings  against  him  insti- 
tuted to  protect  the  interests  of  the  creditors.     Abbott  v.  Fisher,  124 
Mass.  414. 

2743.  In  assumpsit  on  a  promissory  note  by  the  bearer  against  the 
maker,  it  appeared  that  it  was  drawn  payable  to  the  wardens  and  ves- 
try  of  a  certain   church,  or  bearer,  and  there  was  evidence  tending  to 
show  that  after  it  was  executed  and  delivered  to  the  corporation,  and  be- 
fore it  passed  into  plaintiff's  possession,  the  corporation  became  in  fact 
extinct  by  the  removal  of  its  officers  and  members.     It  did  not  appear 
that  the  corporation  ever  parted  with  the  title  to  the  note,  and  plaintiff 
showed  no  title  beyond  mere  possession.     Held,  that  if  the  corporation 
did  become  extinct,  the  defendant  was  not  thereby  discharged  from 
liis  liability  on  the  note,  but  that  title  thereto  vested  somewhere,  and 
that  plaintiff,  having,   so  far  as  it  appeared,  lawful  possession  of  the 


380  MONROE'S  DIGEST 

note,  might  maintain  an  action  thereon  in  his  own  name,  and  recover 
for  the  benefit  of  the  holder  of  the  legal  title.  Hyde  v.  Lawrence,  49 
Rowell,  Vt.  361. 

2744.  A  person  who  receives  two  promissory  notes  upon  an  agree- 
ment to  release  a  demand  upon  their  payment  at  maturity,  is  not  de- 
barred from  his  original  cause  of  action,  by  having  one  note  discounted 
and  taking  it  up  when  protested  for  non-payment,  and  by  prosecuting 
the  other  to  judgment  in  the  name  of  a  friend,  but  for  his  own  benefit, 
nothing  being   received  by  him   upon  either  note,  and  the  discounted 
note  and  an  assignment  of  the  judgment  being  tendered  by  him  in 
court.     Lord  v.  Bigelow,  124  Mass.  185. 

2745.  If  a  promissory  note,  payable  to  the  order  of  A.,  is  given  by 
him  to  the  maker,  it  is  not  essential  to  the  validity  of  the  gift  that  the 
payee  should  indorse  it.     Hale  v.  Bice,  124  Mass.  292. 

2746.  In  an  action  on  a  joint  and  several  note,  signed  by  one  per- 
son as  principal  and  another  as  surety,  and  payable  to  the  order  of  a 
bank,  upon  which  was  the  memorandum,  "  F.   &  L.  bonds  as  collat- 
eral," "  F.  &  L.  notes,"  being  in  fact  deposited  as  security,  it  appeared 
that  the  treasurer  of  the  bank,  in  reply  to  an  inquiry  by  the  surety,  "  if 
the  F.   &   L.  bonds  were  deposited  with  the  note  ? "  replied  that  they 
were.     Held,  that  the  surety  was  not  discharged.     Fitchburg  Savings 
Sank  v.  Rice,  124  Mass.  72. 

2747.  If  land  mortgaged  to  secure  a  promissory  note  is  sold  under 
a  power  contained  in  the  mortgage,  and  brings  less  than  the  amount  of 
the  note,  an  action  may  be  maintained  on  the  note  for  the  balance  due. 

Wing  v.  Hay  ford,  124  Mass.  249. 

2748.  The  alteration  of  a  promissory  note  by  one  of  the  makers, 
by  increasing  the  amount  for  which  it  was  made,  by  the  insertion  of 
words  and  figures  in  blank  spaces  left  in  the  printed  form  on  which  it 
was    written,  avoids   the   note   as   to  such   makers  as  do  not  consent 
thereto,  even  in  the  hands  of  a  bona  fide  holder  for  a  valuable  consid- 
eration.    Greenfield  Savings  Bank  v.  Stowell,  123  Mass.  196. 

2749.  A   negotiable  promissory  note  is,  under  the  act  of  April, 
1873,  governed  by  the  law  merchant,  and  an  indorsee  for  value  before 
maturity  in  due  course  of  business,  without  notice,  takes  it  free  from 
any  set-off  in  favor  of  the  maker,  or  against  the  assignor.     The  provi- 
sion of  section  570,  Gantt's  Digest,  that  all  blank  assignments  shall  be 
taken  to  have  been  made  on  such  a  day  as  shall  be  most  to  the  advan- 
tage of  the  defendant,  merely  changes  the  former  rule  of  presumption  to 
be  applied  in  the  absence  of  evidence,  and  it  is  competent  for  the  plain- 
tiff to  prove  the  actual  date  of  the  assignment.     Clendenin  v.  Souther- 
land.  31  Ark.  20. 

2750.  A  waiver  of  demand  and  notice  upon  a  promissory  note  is 
as  effectual  after  as  before  the  maturity  of  the  note.     Eindge  v.  Kim- 
ball,  124  Mass.  209. 

2751.  In  an  action  against  a  surety  on  a  promissory  note,  it  is  no 
defence  that  the  holder  delayed  enforcing  the  note  against  the  maker, 
and  that  the  surety  was  thereby  injured.     Allen  v.  Brown,  124  Mass. 
77. 

2752.  A  memorandum  of  "  F.  &  L.  bonds  as  collateral,"  on  a  joint 
and   several   note,  signed   by  one  person  as  principal  and  another  as 
surety,  is  not  notice  to  the  payee  of  any  agreement  between  them  that 


OF   STANDARD   DECISIONS.  381 

the  principal  would  pledge  the  bonds  named,  nor  a  condition  precedent 
to  the  liability  of  the  surety  that  the  payee  should  receive  the  bond* 
named  as  security.  Fitchburg  Savings  Bank  \.  Rice,  124  Mass.  72. 

2753.  A.,   through   fraud,   obtained    from   B.   a  promissory  note 
signed  by  B.  and  payable  to  the  order  of  C.,  forged  the  indorsement  of 
C.  and  got  the  note  discounted  at  a  bank.     On  the  maturit}'  of  the 
note  B.  paid  it  to  the  bank.     Held,  that  B.  could  maintain  an  action 
against  the  bank  for  money  had  and  received,  although  the  bank  acted 
in  good  faith  in  taking  the  note.     Carpenter  v.  Northborough  National 
Bank,  123  Mass.  66. 

2754.  When  a  promissory  note,  based  on  an  insufficient  considera- 
tion, has  been  obtained  from  a  person  under  the  influence  of  liquor  at 
the  time  of  its  execution,  and  enfeebled  in  mind  and  body  by  long  con- 
tinued disease  and  drunkenness,  a  presumption  of  fraud  arises,  which 
must   be  conntervailed  by  proof  of  a  fair  consideration,  and  fair  and 
honest  dealing  on  the  part  of  him  who  seeks  to  inforce  payment  of  the 
note.     Holland  v.  Barnes,  53  Ala.  83. 

2755.  Defendant   signed  a  note  with  L.,  as  it  appeared  from  the  • 
force  of  it  as  a  principal  with,  but  in  fact  as  security  for  him.     In  or- 
der to  procure  it  to  be  discounted,  L.  took  the  note  to  plaintiff,  and 
asked  him"  if  he  would  sign  it  with  him,  and  defendant,"  and  plaintiff 
signed  it,  adding  to  his  signature  the  word  surety,  supposing  from  the 
manner  in  which  he  was  asked  to  sign  it,  and  from  its  appearance,  that 
he  was  signing  as  surety  for  both  L.  and  defendant,  and  regarded  them 
as  principals.     The  note  was  discounted,  and,  upon  its  maturity,  L.r 
having  negotiated  with  the  bank  for  renewal,  drew  another  like  it,  pro- 
cured defendant's  signature  thereto  as  before,  and  sent  it  to  plaintiff, 
requesting   him  to  sign  and  deliver  it  to  the  bank,  and  take  up  the 
former  note,  which  he  did,  adding  to  his  signature,  as  before,  the  word 
surety.     Held,  that  plaintiff  was  surety  for,  and  not  co-surety  with  de- 
fendant.    Sherman  v.  Black,  49  Rowell,  Vt.  198. 

2756.  One  who  puts  his  name  on  the  back  of  a  note  at  the  time  it 
is  made  and  before  it  comes  to  the  hand  of  the  payee,  there  being  noth- 
ing  to  show  with  what  intention,  is  liable  as  maker.     The  opinion  of 
the  court  at  the   former  term  in  this  cause,  on  this  point,  reexamined 
and  affirmed.     Good  v.  Martin,  2  Colorado,  218. 

2757.  In  an  action  on  a  promissory  note  against  one  who  is  charged 
as  maker,  upon  the  ground  that  he  indorsed  the  note  at  the  time  it  was 
made,  and  before  it  was  delivered  to  the  payee,  the   circumstance  that 
he  did  not  participate  in  the  consideration,  does  not  tend  to  explain  or 
rebut  his  liability  as  maker.     Ibid. 

2758.  Promissory  note  is  secured  by  a  chattel  mortgage,  executed 
by  the  maker  of  the  note ;  in  the  absence  of  a  demand,  or  any  proceed- 
ing by  the  payee  equivalent  to  a  demand,  the  maker  is  entitled  to  the- 
whole  of  the  business  hours  of  the  last  day  of  grace  to  pay  the  note, 
and  is  not  in  default  until  the  expiration  of  that  time.     Daly  v.  Proetzt 
20  Minn.  411. 

2759.  Plaintiff  and    defendant   were  indorsers  of  a  promissory 
note  whereof  M.  was  payee.     The  makers  became  bankrupt,  and  plain- 
tiff paid  the  note,  which  M.  had   procured  to  be  discounted.      The 
makers  compounded  with  their  creditor,  and  plaintiff  received  his  pro- 
rata  portion,  and  with  the  advice  and  consent  of  defendant,  and  upon. 


382  MONROE'S  DIGEST 

his  agreement  that  his  liability  should  not  be  thereby  affected,  discharged 
the  makers  from  further  liability.  Held,  that  the  liability  of  the  in- 
dorser  was  fixed  by  the  insolvency  of  the  makers  ;  that  when  plaintiff 
paid  the  note,  defendant  became  liable  to  contribute  a  moiety  ;  and  that 
defendant  was  estopped  from  questioning  the  agreement  that  induced 
the  discharge.  Hutchinson  v.  Thacher,  49  Rowell,  Vt.  486. 

2760.  If  a  promissory  note,  not  negotiable,  is  given  to  a  married 
woman  by  a  third  person  in  consideration  of  her  husband's  giving  up 
to  him  a  like  note,  and  she  transfers  the  note,  with  her  husband's  con- 
sent, to  a  creditor  of  his,  in  fraud  of  other  creditors,  the  maker,  in  an 
action  upon  it  in  her  name,  cannot  take  advantage  of  that  fact.     Hard- 
ing v.  Colon,  123  Mass.  299. 

2761.  Promissory  note  was  executed  on  Sunday,  but  bore  date  the 
following  day,  and  was  indorsed  before  maturity,  for  value.     Held,  that 
the  indorsee  was  not  affected  by  the  original  invalidity  of  the  instru- 
ment.     Trieber  v.  Com.  Bank  of  St.  Louis,  31  Ark.  128. 

2762.  Promissory  note  made  payable  on  a  day  named,  "  or  before, 
if  made  out  of  the  sale  of  J.  B.  Drake's  horse,  hayfork  and  hay  carrier, 
with  use,"  is  payable  at  all  events  on  the  day  named,  with  six  per  cent, 
per  annum  interest  from  date.     Gisne  v.  Chidester,  85  111.  523. 

2763.  The  mere  fact  of  cancelling  the  signature  of  the  makers  of  a 
dishonored  promissory  note  and  writing  "  paid  "  on  the  note,  corrected 
before  the  note  is  sent  back  to  the  plaintiffs  by  a  memorandum  thereon 
"  cancelled  in  error,"  cannot  be  effectual  to  charge  a  bank  with  the  re- 
ceipt of  the  money.     Where  a  promissory  note  is  dishonored  to  the 
plaintiffs,  the   amount  thereof  having  been    transmitted   by   transfer 
drafts  and  entries  in  the  bank's  books,  from  the  branch  where  the  same 
was  made  payable  to  the  branch  where  the  plaintiffs  paid  the  same  in, 
Buch  transfer  and  entries  not  being   communicated  to  the  plaintiffs, 
Held,  that  the  bank  could  not  be  charged  with  the  receipt  of  the  money. 
The  position  of  branch  banks  is,  that  in  principle  and  in  fact  thejr  are 
•agencies  of  one  principal  banking  corporation  or  firm,  notwithstanding 
that  they  may  be  regarded  as  distinct  for  special  purposes  ;  e.  g.,  that 
of  estimating  the  time  at  which  notice  of  dishonor  should  be  given  ;  or 
of  entitling  a  banker  to  refuse  payment  of  a  customer's  check  except 
at  that  branch  where  he  keeps  his  account.     Prince,  et  al.  v.  Oriental 
Bank,  41-42  Eng.  Law  Reports,  3  Appeal  Cases,  1878,  page  325. 

2764.  Promissory  note,  made  payable  to  the  order  of  the  maker, 
lias  no  validity  until  it  is  indorsed  and  transferred  by  him.     Payser  v. 
Ht.ll,  Admr.,  85  111.  511. 

2765.  The  law  in  force  when  a  promissory  note  is  made  and  in- 
dorsed, regulates  and  defines  the  liabilities  of  the  parties.     Cook  v. 

Citizens1  Mutual  Ins.  Co.,  53  Ala.  37. 

2766.  Where,  on  the  sale  of  a  note,  it  is  represented  as  business 
paper,  the  fact  that  it  was  in  reality  an  accommodation  note,  ought  to  be 
clearly  proved  ;  if  the  law  be  not  violated,  the  intent  of  the  purchaser 
is  wholly  immaterial.     Smith  v.  Paton,  6  Bos.  145  ;  S.  C.,  31  N.  Y.  66. 

2767.  Promissory  note  must  be  certain  as  to  day  of  payment.     A 
promise  to  pay  a  sum  of  money   upon  the  condition  that  a  railroad 
should  be  built  to  a  place  named  on  or  before  20th  of  February,  1871, 
is  not  a  promissory  note,  and  is  not  negotiable  as  such.     Eldred  v. 
Jf alloy,  2  Colorado,  320. 


OF  STANDARD   DECISIONS.  383 

2768.  A  promissory  note  given  in  consideration  of  services,  al- 
ready rendered  the  maker,  for   which  the  payee  had  already  received 
the  amount  mutually  agreed  on  between  them,  is  a  mere  gratuity  and 
without  consideration.     Holland  v.  Barnes,  53  Ala.  83. 

2769.  In  an  action  on  a  promissory  note  by  the  administrator  of 
the  payee  there  was  evidence  that,  on  the  death  of  the  payee,  the  note, 
in  a  division  of  the  personal  property  made  before  the  appointment  of 
the  administrator,  fell  to  a  daughter,  who  by  an  agent  demanded  of  the 
principal  maker  payment  of  the  note ;  that  the  maker  replied  that  it 
•was  not  convenient  for  him  to  pay  it,  but  agreed  to  pay  interest  at  eight 
per  cent. ;  that  the  agent  thereupon   wrote  the  words  "  at  eight  per 
•cent."  on  the  note  in  the  presence  and  with  the  assent  of,  the  maker  ; 
that  surety  on  the  note,  when  told  of  the  maker's  agreement,  after  his 
death,  and  when  shown  the  note  so  altered,  paid  the  interest  at  eight 
per  cent.     Held,  that  the  legal  title  to  the  note  was  in  the  adminis- 
trator, and  that  he  could  maintain  an  action  upon  it.     Held  also,  that 
the  evidence  would  warrant  the  jury  in  finding  that  both  the  maker 
And  the  surety  assented  to  and  ratified  the  note  in  its  altered  form,  and 
thereby  agreed  to  pay  the  same  to  the  lawful  holder  for  the  sufficient 
•consideration  of  an  agreement  to  forbear,  and  an  actual  forbearance,  by 
those  who  apparently  had  the  actual  control  of  the  note  and  the  equi- 
table interest  therein.     Prouty  v.  Wilson,  123  Mass.  279. 

2770.  Where  a  petition  alleges  that  "  the  defendant,  by  P.  and  A., 
her  attorneys  in  fact,  made  and  delivered  to  one  T.,  her  promissory 
note  of  that  date,  and  thereby  promised  to  pay  to  said  T.  or  order," 
etc.,  and  a  copy  of  said  note  is  attached  to  said  petition  as  a  part 
thereof,  which  is  signed  as  follows  :     "  Eliza  C.  Abeel,  by  Charles  A. 
Phillip  and  John  T.  Abel)"  (Eliza  C.  Abeel  being  the  defendant,  and 
the  sufficiency  of  the  petition  not  being  in  any  manner  attacked  until 
after  judgment), — Held,  that  the  allegations  of  the  petition,  with  re- 
gard to  the  execution  of  the  note,  are  sufficient  to  charge  defendant. 
Abell  v.  Harrington,  18  Kansas,  243. 

2771.  If  a  person  pays  a  promissory  note  through  mistake,  sup- 
posing the  signature  upon  the  note  to  be  his  genuine  signature,  he  may, 
on  discovering  it  to  be  forged,  maintain  an  action  to  recover  back  the 
money  paid,  if  he  is  not  guilty  of  laches,  whereby  the  situation  of  the 
other  party  is  changed  to  his  injury.      Welch  v.  Goodwin,  123  Mass. 
71. 

2772.  A  note  payable  on  or  before  six  months  from  date,  was  de- 
clared upon  as  payable  six  months  from  date.     Held,  no  variance.     B. 
was  interested  with   the  plaintiff,   his  son,  in   the  note  in  suit,  which 
purported  to  be  signed  by  defendant  as  surety  for  his  son,  the  principal. 
The  testimony  tended  to  show  that  B.,  having  heard  rumors  unfavor- 
able to  the  principal's  solvency,  went  to  defendant  and  told  him  he  held 
&  note  against  him,  and  as  he  signed  it  as  surety,  and  it  was  overdue, 
lie  thought  he  would  let  him  know  about  it ;  that  defendant,  therefore, 
looked  at  the  note,  and  at  his  name  thereon,  and  said  :     "  It  is  all 
right ;  "  that  about  ten  days  thereafter,  defendant  asked  B.  what  inter- 
est his  (defendant's)  son  was  paying  on  the  note,  and  was  told,  and 
thereupon  said  that  that  was  better  than  they  could  do  at  the  bank  -, 
And  that   therefore  B.  supposed  "  everything  was  all  right,"  and  made 
no  attempt  to  collect  the  note,  nor  to  press  payment  thereof,  until 


384  MONROE'S  DIGEST 

about  a  year  and  a  half  afterwards,  though  the  principal  continued  in 
business  about  six  months  thereafter  as  before.  Held,  that  the  testi- 
mony tended  to  show  all  that  was  necessary  to  estop  defendant  from 
denying  that  he  signed  the  note.  Bates  v.  Leclair,  49  Rowell,  Vt. 
229. 

2773.  A  note  otherwise  negotiable,  is  not  rendered  non-negotiable 
by  the  addition  of  a  stipulation  to  pay  costs  of  collecting,  including 
reasonable    attorney    fees,  if  suit  be  instituted  thereon.      Seaton  v» 
Scovill,  18  Kansas,  433. 

2774.  When  no  time  of  payment  is  expressed  in  a  note,  the  law 
adjudges  it  to  be  due  and  payable  immediately.     Dodd  v.  Denny,  fr 
Oregon,  156. 

2775.  The  situation  of  a  person,  to  whom  money  is  paid  by  mis- 
take on  a  forged  note,  is  not  changed  to  his  injury  by  the  fact  that,  on 
payment,  he  transfers  to  the  payer  a  mortgage  which  he  received  as 
collateral  security  for  the  note,  and  which,  with  the  note,  ne  took  in  good 
faith,  supposing  the  note  to  be  genuine,  the  mortgage  having  been  given 
as  security  for  another  note,  of  which  the  forged  note  was  a  copy. 
Welch  v.  Godwin,  123  Mass.  71. 

2776.  Minear,  being   indebted    to  the   Bank   of  Idaho  upon   hi* 
promissory  note,  in  consideration  of  an  extension  of  time  thereon  to 
Minear.     Miller  executed  his  promissory  note  to  the  bank  for  the  sum 
of  Minear's  note,  with  the  understanding  that  both  notes  should  be 
delivered  up  when  either  was  paid.     Moore,  a  stockholder  in  the  bank, 
received  both  notes,  with  notice  of  all  the  facts,  as  a  part  of  his  share 
of  the  bank  assets.     The  Miller  note  was  regularly  indorsed  to  him ; 
the  other  was  delivered  without  indorsement.     Held,  1.    That  Miller's- 
liability  was  not  that  of  an  indorser  upon  the  Minear  note,  but  that  it 
grew  out  of  an  independent  contract  to  pay  a  certain  sum  at  a  fixed 
time,  upon  conditions  expressed  in   the  agreement.     2.    That  Moore- 
became  the  owner  of  the  Minear  note  without  indorsement,  arid  that 
he  had  the  right  to  maintain  his  action  upon  the  Miller  note.     Moore 
v.  Miller,  6  Oregon,  254. 

2777.  A    parol   agreement,   by  which   the  purchase  mone}'  notes 
were  to  be  deposited  with  an  attorney,  and  from  the  proceeds  of  such 
notes  outstanding  liens  against  the  land  deeded  to  the  maker  of  the 
notes  were  to  be  taken  up  and  discharged,  may  be  shown,  in  defence 
of  an  action  upon  such  notes.     Such  an  agreement  is  so  far  distinct 
from  and  collateral  to  that  part  of  the  contract  reduced  to  writing  as 
to  allow  of  its  establishment  by   parol  evidence.      Thomas  v.  Ham- 
mond, 47  Texas,  43. 

2778.  Where  a  note,  taken  in  renewal  of  the  balance  due  on  an- 
other, secured  by  a  deed  of  trust,  is  negotiated  by  the  payee,  the  pur- 
chaser  of  the  new  note  is  entitled  to  enforce  the  deed  of  trust  to 
secure  payment  thereof.     Giving  a  new  note  for  the  balance  due  on  an 
old  one,  will  not  operate  to  discharge  the  security,  unless  it  is  apparent 
that  the  parties  intended  to  extinguish  the  lien  of  the  deed  of  trust. 
Gleason  v.  Wright,  53  Miss.  247. 

2779.  M.,  the  payee  of  a  promissory  note,  asked  defendant  to  in- 
dorse it,  which  he  refused  to  do  unless  the  plaintiff  would  indorse  it. 
M.  promised  to  procure  plaintiff  to  indorse  it,  whereupon  defendant  in- 
dorsed it.     Plaintiff,  on  being  asked  to  indorse  it  refused  to  do  so  un- 


OF   STANDARD   DECISIONS.  385 

less  M.  would  procure  defendant  to  sign  with  him  a  note  for  a  like 
sum,  payable  to  plaintiff  as  security  therefor,  which  M.  agreed  to  do, 
whereupon  plaintiff  indorsed  it.  M.  afterward  procured  defendant  to 
sign  the  second  note  as  agreed,  and  delivered  it  to  plaintiff.  Held, 
that  as  the  second  note  was  given  without  any  new  consideration,  for 
the  purpose  of  indemnifying  plaintiff  for  indorsing  the  first  note,  on 
which  plaintiff  and  defendant  were  made  co-sureties,  the  second  note 
was,  as  between  the  parties,  nudum  pactum  and  invalid.  Hutchinson 
v.  Thacker,  49  Rowell,  Vt.  486. 

2780.  A   bona  fide  holder  of  a  note,  who  purchased  it  for  value 
before  it  fell  due,  and  without  notice  of  payments  made  on  it,  can  col- 
lect the  face  of  the  note  and  interest.     The  assignee  of  a  promissory 
note,  who  purchases  it  in  good  faith  before  it  falls  due,  without  knowl- 
edge that  payments  have  been  made  on  it,  and  receives  a  covenant 
from  the  payee  that  the  sum  he  pays  for  it  is  due,  cannot  maintain  an 
action  on  the  covenant  if  such  amount  is  not  due,  for  he  sustains  no 
loss,  as  the  payer  is  liable  to  him  for  the  face  of  the  note.     Small  v. 
Clarke,  51  Cal.  227. 

2781.  When  at  the  time  of  the  execution  of  a  promissory  note,  a 
contract  in  writing  is  made  between  the  payer  and  payee  upon  a  sepa- 
rate piece  of  paper,  which  describes  the  note  and  clearly  refers  to  it, 
the  note  is  to  be  read  in  connection  with  the  contract  as  though  it  had 
been  incorporated  into  it,  and,  in  an  action  oji  the  note  brought  by  the 
payee,  the  payer  may  introduce  evidence  that  the  payee  has  broken 
the  stipulations  of  the  contract.     Goodwin  v.  Nicherson,  51  Cal.  166. 

2782.  Circuit  Court  rule  79  excuses  the  plaintiff  on  a  promissory 
note  from  proving  its  execution,  if  the  defendant  omits  to  file  an  affi- 
davit denying  it.     Held,  that  the  only  object  of  this  rule  is  to  enable 
the  plaintiff  to  make  out  a  prima  facie  case,  not  a  conclusive  one,  and 
that  it  would  not  preclude  a  defendant  from  introducing  any  defence 
on  the  merits  that  did  not  contradict  the  execution  of  the  note.     It 
would  not  prevent  an  indorser  from  showing  that  he  had  signed  with- 
out consideration,  and  after  the  note  had  been  delivered.     Enright,  et 
al.  v.  Ellison,  37  Mich.  459. 

2783.  The  execution  of  a  note  is  only  its  actual  making  and  de- 
livery.    Ibid. 

2784.  It  seems  that  where  the  considerations  of  a  note  is  open  to 
inquiry  at  all,  it  is  as  much  so  in  behalf  of  any  one  of  the  defendants 
as  of  all.     Ibid. 

2785.  In  action  on  partnership  paper  given  mala  fide,  but  bind- 
ing  one   partner,  evidence   is   admissible   to   exonerate  a  copartner. 
Ibid. 

2786.  Contemporaneous  and  subsequent  guarantees  have  the  same 
contract  force,  and  differ  only  as  to  what  considerations  sustain  them. 
Ibid. 

2787.  Subsequent  indorsement  does  not  make  the  indorser  jointly 
liable  with  his  principal,  and  joint  liability  is  not  presumed  when  the 
indorsement  is  not  dated ;  it  is  shown  by  independent  proof  of  con- 
temporaneous execution.     Ibid. 

2788.  The  production  of  a  note  in  evidence  under  the  common 
counts  without  objection,  will  not  preclude  raising  the  objection  that 
it  varies  from  a  special  count.     Ibid. 

25 


386  MONROE'S  DIGEST 

2789.  In  an  action  on  a  note  by  a  holder  who  received  it  after  it 
became  due,  and  who  in  fact  was  a  mere  agent  and  nom  de 
plume  in  the  matter.  Held,  that  the  defendant  might  plead  in  such 
action  all  matters  which  might  have  been  pleaded  to  the  owner  of  the 
note,  and  also  obtain  a  reduction  of  the  usurious  interest  included  in 
the  note  and  of  payments  made  on  account  thereof.  Brooks,  et  al.  v. 
Clegg,  12  L.  C.  R.  461  ;  Q.  B.  1862  ;  2287  C.  C. 

2780.  A  note  given  to  the  new  firm  formed  after  the  dissolution 
of  the  old,  in  satisfaction  of  a  guarantee  given  to  the  old  for  advances 
made  by  them,  was  held,  reversing  court  below,  to  have  been  given  in 
error  and  without  consideration,  and  was  therefore  void.  Henault  v. 
Thomas,  et  al.,  1  L.  R.  706,  Q.  B.  1868. 

2791.  The  evidence  of  the  plaintiff  in  an  action  on  a  note  is  ad- 
missible to  prove  that  the  note,  though  dated  at  Montreal,  was  made 
at  Quebec.     Gault,  et  al.  v.  Wright,  et  al,  13  L.  C.  J.  60 ;  S.  C.  1868. 

2792.  A  demand  and  notice  are  not  necessary  as  against  an  in- 
dorser  who  at  the  date  of  the  maturity  of  the  note  has  sufficient  prop- 
erty of  the  maker  in  his  possession  held  as  security  against  his  liabil- 
ity.    Beard  v.  Westerman,  32  Ohio,  St.  29. 

2793.  If  the  indorsee  of  a  note  has  protected  himself  against  loss 
by  taking  collateral  security  of  the  maker,  it  is  a  waiver  of  his  legal 
right  to  require  proof  of  demand  on  the  maker  and  notice  to  himself 
of  non-payment.     Mead  v.  Small,  2  Green  leaf,  297. 

2794.  If  the  indorser  has  security  in  his  own  hands  fully  equal  to 
his  liability  he  can  suffer  no  loss  by  the  want  of  demand  and  notice, 
therefore  he  has  been  held  liable  in  such  a  case  without  proof  of  those 
facts.     Marshall  v.  Mitchell,  35  Maine,  221. 

2795.  If  the  indorser   receives   security  to  meet  a  particular  in- 
dorsement, he  waives  a  demand  and  notice  in  respect  to  that  indorse- 
ment but  not  as  to  any  other.     Prentiss  v.  Danielson,  5  Conn.  175. 

2796.  A  bond  and  mortgage  were  assigned  to  a  third  party  in 
trust  to  secure  the  indorser  if  the  maker  should  fail  to  pay  the  note, 
and  the  indorser  was  held  notwithstanding  a  defective  notice.     Barrett 
v.  Charleston  Bank,  2  McMullen,  191. 

2797.  The  indorser  being  indemnified  by  a  mortgage  he  was  held 
responsible  although  the  demand  was  made  a  day  too  late.      Wart  v. 
Mitchell,  6  How.  Miss.  131. 

2798.  The   second   indorser   on   a  note  who  had  received    ample 
security  from  the  first  indorser  thereon,  was  held,  although  the  security 
lie  held  had  afterward  become  doubtful.     Ibid. 

2799.  The  want  of  the  words  "  for  value  received,"  does  not  pre- 
sent a  plaintiff  from  recovering  on  a  note  if  it  be  in  evidence  that 
value  was  given  therefor.     Duchesney  v.  Evarts,  2  Rev.  de  Leg.  31,  K. 

B.  1821,2285  C.  C. 

2800.  Promissory   note    under    £50,   drawn   to   order,  may   be 
validly  transferred  for  value  received  by  him  to  whose  order  it  is  made 
•without  indorsation,  and   parol  evidence  is  admissible  to  prove  such 
transfer.     Dupuis  v.  Marron,  17  L.  C.  J.  42,  C.  C.  1873  ;  1233  &  2341 

C.  C. 

2801.  Action  was  brought  on  a  note  and  open  account,  and  de- 
fendant  pleaded  that  he  had  sent  in  a  renewal  note  to  the  plaintiffs 
which  they  retained  in  their  possession  and  which  had  not  yet  ma- 


OF   STANDARD   DECISIONS.  387 

lured,  and  the  plaintiffs  replied  that  they  had  never  agreed  to  renew. 
Held,  that  defendant  was  bound,  unless  on  acceptance  by  plaintiffs,  to 
call  and  take  away  the  renewal  note,  and  the  mere  fact  of  plain- 
tiffs not  returning  it  could  not  be  construed  into  an  agreement 
to  renew.  Lyman,  et  al.  v.  Chamard,  1  L.  C.  J.,  285,  S.  C.  1857. 

2802.  Where  certain  notes  were  nearly  out  of  date,  the  defendant 
was  called  ou  by  the  holder  of  them,  and  notified  that  unless  some- 
thing was  done  suit  would  be  brought  upon  them.     Whereupon  the 
defendant  signed  the  following  indorsement  upon  each  of  the  notes : 
"  Paid  Dec.  16th,  1872,  $500  on  acct.  of  this  note  to  revive  the  same." 
Held,  that  if  the  parol  evidence  of  the  agreement  relied  on  by  him  as 
a  defence,  was  otherwise  admissible,  the  defendant  had  effectually  pre- 
cluded himself  from  the  resort  to  such  defence  by  said  indorsement 
upon  the  notes.     Held,  further,  that  if  there  were  any  question  of  the 
plaintiff's  right  to  recover  on  the  notes  as  specially  declared  on,  there 
could  be  none  whatever  of  their  right  to  recover  on  them  with  the  de- 
fendant's  indorsement  thereon,  under  the  count  on  an  account  stated. 
McSherry  v.  Brooks  and  Barton,  Trustees,  46  Md.  103. 

2803.  Action  was  brought  on  a  note  signed  by  a  married  woman 
•separate  as  to  property,  without  the  authority  of  her  husband.     Held, 
confirming  court  below,  that  as  the  defendant  was   at  the    time   of 
making  the  note  in  question  a  merchande  publique,  that   the   authori- 
sation of  her  husband   was  unnecessary.     Beaubien  &  Husson,  12  L. 
C.  R.  47,  Q.  B.  1862  ;  179  C.  C. 

2804.  Promissory  note  signed  with  an  X  in  presence  of  a  witness 
is  good  and  valid.     Collins  v.  Bradshaw,  10  L.  C.  R.  366,  C.  C.  1860. 
Defendant  was  sued  on  a  note  signed  with  a  cross,  and  pleaded,  deny- 
ing the  signature,  and  plaintiff  failed  to  prove  the  signing.     Held,  that 
the  action  must  be  dismissed.     Coupal  v.  Coupal,  5  R.  L.  465,  S.  C. 
R.  1873. 

2805.  A  promissory  note  not  yet  due,  indorsed  by  a  party  who 
has  since  become  bankrupt,  does  not  entitle  the  holder  to  be  paid  au 
mare  la  livre  concurrently  with  the  other  creditors  of  the  bankrupt, 
•the  term  for  payment  not  having  expired.     Mailloux  Audet  &  Mailloux 
&  Carrier,  14  L.  C.  R.  207,  C.  C.  1864. 

2806.  Where  a  note  is  executed  by  a  married  woman  authorized 
by  her  husband,  for  property  bought  by  her,  during  marriage,  and  it  is 
not  shown  that  she  is  separate  in  property,  nor  that  she  administered  her 
paraphernal  property,  nor  that  she  was  a  public  merchant,  nor  that  the 
property  inured  to  her  separate  benefit,  she  cannot  be  held  liable  on 
the  note.     Such  note  is  a  debt  of  the  community,  inasmuch  as  the  prop- 
erty, the  consideration  of  the  note,  belongs  to  the  community.     For  such 
a  debt  a  wife,  such  as  is  sued  herein,  is  incapable  of  binding  herself. 
The  husband  is  liable.     Mr.  M.  W.  Graham  \.  Mrs.  Z.  A.  Thayer,  29 
La.  75. 

2807.  Stewart  lent  to   Sterling  and   Cooper  $250  each  and  took 
their  joint  note  for  $500 ;  Sterling  was  liable  for  half  the  note  as  prin- 
cipal and  half  as  surety.     Stewart  told  Sterling  that  if  he  would  pay 
half  the  note  he  would  give  him  a  receipt  in  full  for  his  half;  Sterling 
paid  the  half  and  the  receipt  given.     Held,  that  this  did  not  release 
him  from  the  other  half.     Sterling  v.  Stewart,  74   Penn.   St.  Repts. 
p.  445. 


388  MONROE'S  DIGEST 

2808.  The  act  of  May  4,  1869  (66  Ohio,  L.  93),  making  it  a  penal 
offence  to  take  a  "  promissory  note  or  other  negotiable  instrument  'r 
not  containing  the  words  "  given  for  a  patent  right,"  knowing  the  con- 
sideration thereof  to  be  a  patented  invention,  does  not  include  in  such 
offence  the  taking  of  notes  or  instruments  not  negotiable.     An  indict- 
ment which  does  not  show  that  the  note  or  instrument  on  which 
it  is  founded  was  negotiable,  does  not  show  an  offence  under  the  actr 
and  may  be  met  by  demurrer.     State  v.  Brower,  30  Ohio,  101. 

2809.  The  maker  of  a  promissory  note,  after  judgment  recorded 
against  the  indoreer,  not  a  competent  witness  for  the  indorser  in  a- 
suit    in    equity   to    restrain    the   collection  of   the   judgment.     Mc- 
Dowell v.   Bank  of  Wilmington  and   Brandywine,   Bates,   2    Dela- 
ware, 1. 

2810.  A  bank  being  the  holder  of  a  promissory  note  protested  for 
non-payment,  has  not  the  right  to  credit  it  with  deposits  made  by  the 
debtor  to  his  account  as  a  justice  of  the  peace  ;  and  its  omission  to  do- 
so  does  not  discharge  the  indorser.     Ibid. 

2811.  An  agreement  by  the  bank  to  credit  the  note  with  such  fees- 
as  the  debtor  might  earn  as  a  notary  public  in  protesting  bills  and  notes- 
for  the  bank  does  not  discharge  the  indorser,  though  made  without  his- 
privity.     Ibid.     Philpot  v.  Bryant,  4  Bing.  R.  721 ;  also,  13  Eng.  Com, 
Law,  128. 

2812.  An  agreement  between  the  creditor  and  the  principal  debtorr 
in  order  to  discharge  the  surety,  must  be  such  as  gives  time  to  the 
debtor  ;  arid  it  must  be  for  a  consideration.     Ibid. 

2813.  The  indorser  of  a  promissory  note  due  the  llth  February,, 
gave  to  the  holder  a  memorandum,  as  follows:     "  My  note,  becoming 
due  the  10th  instant,  good  for  ten  da}rs  after  date."     The  note  to  which 
he  referred  became  due  the  llth,  there  was  no  other  note,  and  it  was 
presented   the  24th  February.     Held,  the  indorser  was  liable.     Bur- 
nett v.  Monaghan,  et  al,  3  R.  L.  448 ;  L.  C.  R.  1871,  2324  C.  C. 

2814.  A  mere  memorandum  made  by  a  party  on  a  note,  or  obliga- 
tion, in  his  possession,  cannot,  when  the  fact  it  purports  to  establish  i* 
denied,  be  admitted  as  testimony  sufficient  to  create  or  continue  the 
liability.     In  this  case  the  statute  of  limitations  was  pleaded,  and  the 
fact  that  the  payment  indorsed  on  the  note  was  actually  made,  was 
controverted  by  the  personal  representative  of  the  payer.     The  judg- 
ment of  the  circuit  court,  sustaining  the  plea  of  the  statute  of  limita- 
tions,  is    affirmed.     Frazer's   Adm'rs   v.    Frazer,  et    al.,   13    Bush, 
Ky.  397. 

2815.  Promissory  notes,  payable   at   and   discounted   by  an   in- 
corporated bank,  are  placed,  by  the  law  of  this  State,  upon  the  foot- 
ing of  foreign  bills  of  exchange.     Duncan  v.  Louisville,  etc.,  13  Bush,. 
Ky.  378. 

2816.  Alterations,  erasures,  or  mutilations  of  a  paper  upon  which 
a  liability  is  sought  to  be  established  against  those  who  are  originally 
bound,   must   be   explained   by   the   holder,  when   the   fact  of  alter- 
ation,  erasure    or    mutilations    is   raised   in   the   pleading,  and    es- 
tablished by  the  proof.     Frazer's  Adm'rs  v.  Frazer,  etc.,  13  Bush,. 
Ky.  397. 

2817.  The  defendant  was  sued  on  a  note  signed  while  he  was  yet  a- 
minor,  which   fact   he   pleaded   simply   as  a   defence   to  the  action^ 


OF   STANDARD  DECISIONS.  389 

Jleld,  that  the  plea  was  insufficient,  on  the  ground  that  the 
defendant  should  have  pleaded  lesion  and  asked  to  be  released 
from  the  obligation.  Cartier  v.  Pelletier,  1  R.  L.  46;  S.  C.,  986  and 
1002  C.  C. 

2818.  The  taking  of  a  promissory  note  for  an  antecedent  debt  im- 
poses upon  the  creditor  an  obligation  to  wait  for  his  pay  till  the  note 
matures,  without  any  special  agreement  to  that  effect,  or  any  under- 
standing that  the  debt  shall  be  thereby  extinguished ;  and  the  delay 
thus  obtained  is  a  sufficient  consideration  for  the  note.     Therefore,  the 
note  of  a  married  woman,  given  for  the  antecedent  debt  of  her  husband, 
is  not  void  for  want  of  consideration,  if  it  is  made  payable  at  a  future 
•day.     The  court  is  not  satisfied  that,  at   the  time  of  the  giving  of 
the  note   in   suit,   the   defendant   did  not   have  an  intelligent  under- 
.standing    of  what   she   was    doing,   nor    that   there   was    any   such 
fraud    or    imposition    practiced    upon    her   as   ought    to  avoid  the 
note.     Thompson  v.  Gray,   63    Me.    228 ;   also,   York  v.  Pierson,  63 
Me.  587. 

2819.  A  note  promising  to  pay  A.,  or  his  order,  £20  on  account 
•of  B.,  enables  the  indorser  of  A.  to  recover  the  amount.     Newton  v. 
Allen,  2   Rev.  de  Leg.,  29   K.  B. ;  and   Moir  v.  Allen,  Ibid.  1817. 
And  on  such  a  note  payment  must  be  made  to  A.  or  A.'s  order,  and  not 
to  B.     Clarke  v.  Esson,  2  Rev.  de  Leg.,  30  K.  B.  1820. 

2820.  When  the  maker  of  the  note  has,  himself,  by  careless  execu- 
tion of  the  instrument,  left  room  for  any  alteration  to  be  made,  either 
by  insertion  or  erasure,  without  defacing  it  or  exciting  the  suspicions 
•of  a  careful  man,  he  will  be  liable  upon  it  to  any  bona  fide  holder  with- 
out notice,  when  the  opportunity  which  he  has  afforded  has  been  em- 
braced, and  the  instrument  filled  up  with  a  larger  amount  or  different 
terms  than  those  which   it  bore  at  the  time  he  signed  it.     Daniel  on 
Negotiable  Instruments,  section  1405,  sustained  in  Blakey  v.  Johnson, 
13  Bush,  Ky.  197. 

2821.  R.  held  the  promissory  note  of  the  firm  of  T.   G.   &  Co. 
After  it  was  given,  some  members  of  the  firm  retired,  leaving  assets 
:sufficient  to  pay  all  debts,  and  taking  the  obligations  of  the  succeeding 
new  firm,  to  pay  all  debts  and  save  the  retiring  partners  harmless. 
Held,  that  unless  R.,  by  some  valid  contract,  expressed  or  implied,  had 
made  himself  a  party  to  this  new  arrangement,  or  had  so  acted  as  to 
be  estopped,  his  rights  on  the  note  against  all  the  members  of  the  old 
firm  remained  unchanged ;  that  while,  as  between  the  partners  them- 
selves, the  relation  of  principal  and  surety  existed,  yet,  as  to  the  payee 
of  the  note,  all  were  principals  and  joint  debtors,  although  notice  of 
such  obligation  was  brought  home  to  him.     Where  the  payee  of  such 
note  has  received  from  the  new  firm  a  chattel  mortgage  of  the  partner- 
ship property  sufficient,  if  applied,  to  satisfy  the  debt,  he  ma3r,  with 
the  assent  of  the  retiring  partners,  release  the  mortgage,  and  return  the 
property  or  its  avails  to  the  new  firm,  without  impairing  his  rights 
against  all  the  joint  obligors  on  the  note,  even  though  he  had  such 
notice  of  the  subsequent  contract  between  the  parties.     Rawson   v. 
Taylor,  30  Ohio,  389. 

2822.  Proof  of  the  due  execution  of  such  procuration  must  be 
made  to  entitle  the  plaintiff  to  recover  judgment  in  an  ex  parte  suit  on 
the  note.     Ettrier  &  Thomas,  15  L.  C.  J.  225,  Q.  B.  1873.     And  even 


390  MONROE'S  DIGEST 

where  the  defendant  is  in  default  to  appear.     Ibid.     17  L.  C.  J.  79,, 
Q.  B. 

2823.  Promissory  note  of  hand  executed  by  the  maker's  mark  if 
indorsed  gives  no  action  to  the  indorsee  against  the  maker,  but  the  in- 
dorser  is  answerable  for  money  had  and  received.     Jones  v.  Hart,  2 
Rev.  de  Leg.  29,  K.  B.  1819. 

2824.  A  note  of  hand  was  transferred  after  the  time  appointed 
for  payment,  and  there  was  fraud  proved  in  the  transaction.     Heldr 
that  on  slight  grounds  the  law  would  presume  that  the  indorser  had 
knowledge  of  the  fraud,  if  it  appear  that  he  omitted  to  satisfy  liim- 
self  as  to  the  validity  of  the  note.     Hunt  v.  Lee,  2  Rev.  de  Leg.  28,  K. 
B.  1813. 

2825.  Promissory  note  made  by  defendant  in  favor  of  another. 
The  note  was  not  paid  or  protested  at  maturity,  but  some  time  after- 
wards the  payee  indorsed  it  over  to    plaintiff',  in   part  payment   of 
things  purchased  from  him.     In  an  action  on  the  note,  want  of  protest 
was  raised  by  the  defendant.     Held,  that  the  note  might  be  transferred 
after  maturity,  but  the  maker  could  raise  all  the  questions  which  might 
have  arisen  in  the  meantime  between  himself  and  the  payee.      Dug- 
uay  v.  Stoical,  1  L.  C.  L.  J.  26,  S.  C.  R.  1865. 

2826.  Promissory  notes  given  by  insolvents  a  few  days  before  the 
insolvency,  to  secure  parties  to  whom  they  were  indebted  on  accommo- 
dation paper,  and  on  these  notes  being  transferred  the   transferees 
claimed  to  rank  on  the  estate  of  the  insolvents  for  their  value.     Held,, 
that  such  notes  were  null  and  void  ab  initio,  even  in  the  hands  of  an 
innocent  holder  for  value  before   maturity.     Davis,  et  al.  in  re,  and 
Muir  &  Chamberlin,  et  al,  13  L.  C.  J.  184,  S.  C.  1869,  1032   et  seq.  C. 
C.,  &  Ins.  Act,  1875,  §§.  130-133. 

2827.  A  firm  issued  paper  with  accommodation  indorsements,  and 
protected  the  indorsers  by  a  mortgage  executed  b}*  the  partners.     Sub- 
sequently one  of  the  partners  retired,  and  the  remaining    partners 
formed  a  new  firm,  which  issued  paper  in  renewal  of  some  of  that  is- 
sued by  the  old  firm.     This  new  paper  was  indorsed  by  one  of  the 
former  indorsers,  and  a  new  mortgage,  executed  by  all  the  members  of 
the  old  firm,  covering  the  estate  previously  mortgaged,  with  other 
property,  protected  this  indorser  :     After  voluntary  assignment  by  .the 
new  firm,  the  retired  member  of  the  old  firm,  and  the  last  named  in- 
dorser.    Held,  that  the  new  paper  was  a  mere  renewal  of  the  old,  and 
that  holders  of  the  new  paper  were  entitled  equally  with  holders  of  the 
old  to  the  fund  furnished  by  the  first.     Held,  further,  that  no  inference 
of  the  absolute  payment  of  the  old  paper  by  the  new  could  be  drawn 
either  from  the  fact  that  the  new  mortgage  was  given,  or  from  the 
fact  that  the  old  paper  was  surrendered  or  cancelled  on  the  issue  of  the- 
new.      Held,    further,   that    an   agreement    to   discharge   a   retiring 
partner  will  not  be  inferred  from  the  mere  acceptance  of  the  note  of  the 
continuing  partners  for  the  joint  debt.     Nightingale  v.  Chafee,  11  R. 
I.  609  ;  see  Wilbur  v.  Jernegan,  11  R.  I.  113. 

2828.  Defendant  pleaded  that  the  note  sued  on  had  been  obtained 
from  him  by  surprise  and  false  representations,  and  for  insufficient 
consideration.     Held,  that  he  was  not  bound  to  produce  with  such  plea 
an  affidavit  under  C.  S.  L.   C.  cap.  83,  §  86.     McCarthy,  et  al.  v- 
Barthe,  6  L.  C.  J.  130,  S.  C.  1862. 


OF   STANDARD   DECISIONS.  391 

2829.  Before  a  note  of  hand  payable  d  terme,  becomes  due  action 
may   be  maintained  for  the  amount  against  the  drawer  if  he  absconds. 
Shepherd  v.  Henrickson,  2  Rev.  de  Leg.  31,  K.  B.  1819. 

2830.  Promissory  note  for  £100  was  given  by  an  insolvent  to  one 
of  his  creditors  in  settlement  of  a  claim  of  the  creditor  against  an- 
other party  for  whom  the  insolvent  was  surety,  the  creditor  refusing 
to  sign  the  composition  deed  of  the  insolvent  unless  such  settlement 
•were  made.     Held,  that  as  the  settlement  was  in  no  way  prejudicial  to 
the  other  creditors  who  received  the  composition  to  which  they  agreed, 
that   the  note  was  good,  and  the  action   on  it  must  be  maintained. 
Greenshields  v.  Plamondon,  8  L.  C.  J.  192, 10  L.  C.  R.  251,  Q.  B.  1860, 
reversing  3  L.  C.  J.  240,  S.  C.  Ins.  Act,  1875,  §§  55  &  56. 

2831.  Defendant  pleaded  want  of  notice  of  protest,  but  produced 
no  affidavit  in  support  of  such  plea.      Held,  that  the  action  would  be 
maintained,  notwithstanding  the  protest  produced  contained  no  certifi- 
cate that  notice  of  such  protest  had  been  given.      The  Bank  of  Upper 
Canada  &  Turcotte,  15  L.  C.  R.  276,  S.  C.  1865,  145  C.  C.  P. 

2832.  Promissory  note  payable  in  this  country  must  be  made  in 
money  current  in  this  country,  and  that  notwithstanding  the  note  in 
question  may  have  been  made  in  a  foreign  country.     Chapman  v.  Mc- 
Fie,  et  al,  1  R.  L.  192,  S.  C.  R.  1869. 

2833.  The  holder  of  a  promissory  note  being  requested  by  a  surety 
to  proceed  against  the  principal  maker,  and  failing  to  do  so,  if  the 
principal  maker  afterward  becomes  insolvent  the  surety  is  exonerated. 
Pain  v.  Packard,  13  Johns.,  affirmed  in  Martin  v.  Skehan,  2  Colorado, 
614. 

2834.  The  stamp  of  a  bank  on  a  promissory  note  is  not  an  in- 
fallible indication  of  the  legal   holder   and   owner.     Barthe   v.  Arm- 
strong, 5  R.  L.  213,  C.  C.  1869. 

2835.  The  holder  and  owner  of  a  note  may  cancel  any  of  the  in- 
dorsations and  reserve  his  recourse  only  against  the  maker,  and  may 
bring  his  action  as  if  he  had  received  it  from  the  payee  or  any  subse- 
quent indorser,  whose  name  is  not  cancelled.     Ibid.,  and  2289,  C.  C. 
Canada. 

2836.  A  note  to  a  creditor  for  the  balance  of  his  claim  in  consid- 
eration of  his  having  signed  a  deed  of  composition  is  void.     Black- 
wood  v.  Chime,  2  Rev.  de  Leg.  27,  Ca.  K.  B.  1809. 

2837.  In  an  action  to  recover  the  amount  of  an  I.  0.  IT.,  Held, 
that  such  an  instrument  was  negotiable  like  other  mercantile  paper. 
Beaudry  v.  Laflamme  &  Davis,  6  L.  C.  J.  307  ;  S.  C.  1862,  Canada. 

2838.  Where  a  claimant  in  insolvency  had  received,  as  holder  of 
a  promissory  note,  a  composition  on  the  amount  of  his  claim  from  an 
indorser,  in  consideration  of  which  he  had  released  the  indorser,  reserv- 
ing his  recourse  against  the  other   parties  to   the   note,   Held,  that 
•whatever   the   claimant  had  received  from  the   indorser  must  be  de- 
ducted from  his  claim  against  the  maker's  estate.     Bessette,  et  al.  v. 
La  Banque  du  People  &   Quevillon,   15  L.  C.  J.  126,  S.  C.  R.  1871, 
Canada. 

2839.  Plaintiff  sued  upon  the  following  instrument :     "  12  months 
from  the  26th  June,  1873,  I  (defendant)  will  pay  J.  C.  (plaintiff)  $90, 
for  D.   P.,  or  otherwise  settle  the  sum  of  $90  for  him,  on  a  note  that 
he  says  he  gave  J.  C.,  for  $100."     Held,  1.  That  this  was  not  a  prom- 


S92  MONROE'S  DIGEST 

issory  note,  and  required  a  consideration  to  support  it.  2.  That  it  was 
a  promise  made  to  D.  P:  and  not  to  plaintiff.  Cochran  v.  Caie,  3  New 
Brunswick  Reports,  224. 

2840.  A  promise  in  writing  to  pay  on  a  day  certain  £250  to  A. 
B.  or  order,  with  an  engagement  to  pay  in  cash  or  in  goods,  if  the 
holder  should  choose  to  demand  the  latter,  is  a  promissory  note,  for 
this  engagement  is  no  more  than  a  power  given  to  the  holder  to  con- 
vert a  promissory  note  into  an  order  for  merchandise  if  he  see  fit  to 
do  so.     McDonald  v.  Holgate,  2  Rev.  de  Leg.  29,  K.  B.  1818;  2344  C. 
C.,  and  art.  229,  infra.  Canada. 

2841.  A  promise  to  pay  a  note  to  the  holder  which  is  not  indorsed 
is  sufficient  to  enable  the  holder  to  recover  if  the  drawer  knew  that  it 
was  not  indorsed.     Aylwin  v.  Cruttenden,  2  Rev.  de  Leg.  30,  K.  B. 
1820;  2285  C.  C. 

2842.  In  an  action  for  goods  sold,  in  which  the  defendant  pleaded 
payment  and  novation  by  a  promissory  note  which  he  had  given  to  the 
plaintiff,  Held,  that  a  writing  merely   certifying  that  a  person  is  in- 
debted to  another  in  a  certain  sum  of  money,  is  not  negotiable  as  a 
promissory  note,  and  if  it  were  it  would  have  been  no  novation  of  the 
debt.     Dasylva,  et  al.  v.  Dufour,  16  L.  C.  R.  294 ;  C.  C.  1866,  Canada. 

2843.  A  son,  having  acknowledged  to  haA'e  stolen  $25,  the  mother 
was  induced  to  sign  a  promissory  note  under  threats  of  having  her  son 
arrested.     Held,  that  she  was  not  liable  on  the  note  in  question.     Mac- 
farlane  v.  Devy,  15  L.  C.  J.  85,  Q.  B.  1871  ;  994,  C.  C.,  Canada. 

2844.  Action  was  brought  on  a  promissory  note  having  two  years 
or  thereabouts  to  run,  on  the  ground  that  the  maker  had  become  in- 
solvent and  had  left  his  domicile  in  Lower  Canada,  and  the  defendant 
demurred  on  the  ground  that  the  plaintiff  had  not  alleged  either  fraud 
or  secretion  of  his   estate.     Held,  dismissing  the  demurrer,  that  the 
note  was  eligible  on  proof  of  insolvency.      Lowell  v.  Meikle,  2  L.  C. 
J.  69,  S.  C.  1853  ;  Ins.  Act,  1875,  §.  80,  Ca. 

2845.  A  note  executed  in  1863  for  the  balance  due  upon  a  note 
executed  in  1853  (such  new  note  being  given  because  of  a  lack  of  space 
on  the  old  note  for  entry  of  a  credit;,  is  not  subject  to  the  legislative 
scale  of  Confederate  money.     Cobb  v.  Gray,  78  N.  C.  94. 

2846.  Action  was  brought  on  a  promissory  note  payable  on  de- 
mand  thirteen   years   after  its  date,  and  prescription  being  pleaded, 
Held,   that   it   was  due  from  the  day   of  its  date,  and  if  action  were 
brought  on  it,  and  no  demand  of  payment  proved,  that  the  omission 
could  not  affect  the  action,  and  merely  the  costs,  and  therefore  the  pre- 
scription ran   from  the  day  of  its  date.     La  Rocque,  et  al.  v.  Andre,  et 
al.,  2  L.  C.  R.  335,  S.  C.  1851 ;  2260,  §  4  C.  C.  C. 

2847.  On  action   to  recover  the  amount   of  a   promissory  note 
signed    by    the    secretary-treasurer   of   a   municipality, — Held,   that 
where  the  power  of  signing  such  promissory  notes  was  not  expressly 
given  to  the  corporation  by  its  charter  or  otherwise,  that  it  could  not 
be  implied  as  necessary  to  accomplish  any  of  the  purposes  for  which 
the  corporation  was  created.     And  held,  also,  that  a  promissory  note 
signed   by   such  corporation  in  settlement  of  a  judgment  against  the 
municipality,  was  null,  the  legislature  having  empowered  municipali- 
ties to  raise  money  in  a  different  way.     Pacand  v.    The  Corporation 
of  Halifax  South,  17  L.  C.  R.  56,  S.  C.  R.  1866,  Canada. 


OF   STANDARD   DECISIONS.  393 

\ 

2848.  In  an  action  on  a  promissory  note  against  an  indorser,  it  is 
not  necessary  for  the  plaintiff  to  allege  in  his  declaration  indorsement 
subsequent  to  the  defendants,  where  the  plaintiff  does  not  sue  upon 
any  title  derived  through  such  subsequent  indorsements.     Bank  of 
America  v.  Senior,  11  R.  I.  376. 

2849.  In  an  action  on  a  note  made  in  the  United  States,  and  pay- 
able  there,  defendant,  after  action  brought,  tendered   the  amount  in 
Canadian  currency,  equal  at  the  then  current  rate  of  exchange  to  the 
amount  of  the  note  in  American  currencj',  with  costs.      Held,  that  judg- 
ment must  be  given  for  the  amount  of  the  note  in  Canadian  currency 
with  costs.      Daly  v.  Graham,  15  L.  C.  R.  137,  and  8  L.  C.  J.  340,  C. 
C.  1864.     And  in  another  case  of  the  same  kind, — Held,  that  the  note 
being  payable  to  bearer,  the  maker  must  be  held  to  have  agreed  to  pay 
in   the   currency  of  the  place  where  the  bearer  resided,  and,  conse- 
quently, that  a  tender  of  payment  in  greenbacks  was  insufficient.     Mc- 
Coy v.  Dineen,  8  L.  C.  J.  339,  S.  C.  1864,  Canada. 

2850.  No  set  form  of  words  is  requisite  to  constitute  a  promissory 
note,  and  an  instrument  called  a  writing  obligatory  as  a  bond  payable 
to   order  for  value  received,  may  be  considered  as  a  note  in  writing 
within  the   intent  of  the  Provincial  Statute  34  Geo.  3,  Cap.  2,  though 
it  do  not  follow  the  very  words  of  the  act,  and  though  it  be  merely 
•described   and   designated   in   the   plaintiff's    declaration   as   writing 
obligatory  or  bond.      Hall  v.  Bradbury,  et  aL,  1  Rev.  de  Leg.  180,  Q. 
B.  1845. 

2851.  An   obligation   before   a   notary    to   pay  a  certain  sum  of 
money  without  condition  and  at  all  events  is  a  promissory  note.     Au- 
rcle  v.  Durocher,  5  R.  L.  Eng.  165,  S.  C.  R.  1873  ;  2244,  C.  C. 

2852.  A  statute  of  the  State  provides  that  "  all  payments  or  com- 
pensations for  liquors  sold  in  violation  of  law,  whether  in  money,  labor 
or   personal   property,  shall   be  held  and  considered,  as  between  the 
parties  to  such  sale,  to  have  been  received  in  violation  of  law,  without 
•consideration,   and  against  equity  and  good  conscience."     With  this 
law   in  force  A.  agreed  to  purchase  of  B.  a  half  interest  in  a  business 
and    stock  in  trade,  a  portion  of  which   consisted  of  liquor  illegally 
kept  for  sale,  and  transferred  a  promissory  note  for  $450  in  part  pay- 
ment.    A.   afterward    repudiated   the   arrangement  and  sued  for  the 
value  of  the  note.     Held,  that  A.  could  recover  so  much  of  the  value 
of  the  note  as  might  have  been  paid  for  liquor  illegally  kept  for  sale, 
the  proportion  to  be  recovered  as  paid  for  liquor  to  be  determined  by 
finding  the  proportional  value  of  the  liquor  as  compared  with  the  rest 
of  the  purchase.     McOuinness  v.  Blegh,  11  R.  I.  94. 

2853.  One  H.  made  his  promissory  note  to  the  order  of  Senior.    It 
was  indorsed  by  Senior,  and  subsequently  by  Stone,  and  by  the  A.  Co. 
by    Stone,   treasurer.     It  passed  into  the  possession   of  the  Bank  of 
America  and  was  taken   up  by  Stone,  who  brought  suit  on  it  against 
Senior  in  the  name  of  the  bank.     At  the  trial,  evidence  was  admitted 
by  the  presiding  judge,  notwithstanding   Senior's  objection,  to  show 
that  Stone  had  paid  the  note  to  the  Bank  of  America  in  full,  and  had 
left  it  for  collection  with  the  bank,  and  that  the  bank  authorized  Stone 
to  bring  suit  in  its  name.     Senior  also  requested  the  judge  to  instruct 
the  jury    that,  as  the  note  had  been  paid  to  the  bank  in  full,  it  could 
neither  bring  suit  on  the  note  nor  authorize  Stone  to  do  so  in  its  name. 


394  MONROE'S  DIGEST 

This  instruction  was  refused,  and  the  jury  was  told  that  if  the  facts, 
as  claimed  by  the  plaintiff,  were  satisfactorily  proved,  the  plaintiff 
could  recover.  Held,  no  error.  Bank  of  American  v.  Senior,  11  R. 
I.  376. 

2854.  In  an  action  on  a  promissory  note  against  an  indorser,  it  is 
not  necessary  for  the  plaintiff  to  allege  in  his  declaration  indorsement* 
subsequent  to  the  defendants,  where  the  plaintiff  does  not  sue  upon 
any  title  derived  through  such  subsequent  indorsement.     Ibid.  376. 

2855.  A   note  payable  to  the  order  of  W.  was  before  issue  in- 
dorsed by   F.     It  was  signed  by  G.,  and  his  signature  was,  at  the  re- 
quest   of  W.,   changed   to   G.,   agent.     The   note   was  given  for  G.'s 
private  debt.     F.  did  not  assent  to  the  change,  and  there  was  no  evi- 
dence to  show  that  G.'s  principals  were  accustomed  to  pay  notes  drawn 
in  this  form.     In  an  action  against  F.,   Held,  that  the  change  was  im- 
material.    Held,  further,  affirming   Mathewson  v.  Sprague,  1  R.  I.  8  ;. 
and  Perkins  v.   Barstow,  6  R.  I.  505,  that  F.  was  not  entitled  to  notice 
of  non-payment.     Manuf.  &  Merchants'  Bank  v.    Follett,  1 1  R.  I.  92. 

2856.  Due   presentment   of  a   note,   when  denied,  is  sufficiently 
shown  by  evidence  that  the  note  was  in  the  bank  where  it  was  made- 
payable,  and   in  the  possession  of  its  officers,  on  the  day  of  its  ma- 
turity, and  that  the  makers  had  no  funds  there  for  its  payment.    When- 
this    proof  is  made,  it  is  not  necessary,  on  this  issue,  to   show  that 
formal  presentment  and  demand  were  made.     When  a  note  is  in  the  bankr 
in  the   custody  of  the  proper  officer,  on  the  day  of  its  maturit}',  such 
possession  is  treated  as  due  presentment.     Huffaker  &  Shy  \.  National 
Bank  of  Monticello,  13  Bush,  Ky.  644;  also,  1  Daniels  on  Negotiable 
Instruments,  p.  486,  §  656. 

2857.  E.  &  M.,  having  been  in  copartnership  in  the  firm  of  Wm. 
M.  &  Co.,  and  E.  having  subsequently  entered  into  partnership  with 
other  parties  under  the  firm  name  of  J.  E.  &  Co.,  by  an  agreement 
passed  in  July,  1855,  M.  agreed  with  J.  E.  &  Co.  to  assume  all  the  lia- 
bilities of  Wm.  M.  &  Co.,  to  pay  the  sum  due  E.  &  Co.  in  four  install- 
ments, and  to  give  security  on  condition  that  he  should  be  allowed  to- 
cut  timber  on  certain  timber  limits  of  E.  &  Co.     He  subsequently  cut 
timber  without  giving  security,  and  the  timber  was  transferred  to  the 
firm  of  Symes  &  Co.,  which  had  made  advances  to  him.     M.  paid  E.  & 
Co.  the  first  installment  of  the  above  mentioned  debt  by  his  notes,  and 
for  £1,500,  which  E.  &   Co.  paid  away  to  a  third  party,  and  one  for 
£800,  which  E.  &   Co.  placed  to  the  credit  of  M.  &  Co.     E.  &  Co., 
having  by  raisie  arret  before  judgment  seized  the  timber  cut  as  in  the 
possession  of  M.,  and  having  sued  for  the  whole  debt.     Held,  that  E_ 
&  Co.,  having  paid  away  the  note  for  £1,500  to  a  third  party,  could 
not  sue  for  the  debt  for  which  it  was  given  without  producing  the  note,, 
and  also  that  E.  &  Co.,  having  carried  the  note  for  £800  to  the  credit 
of  Wm.  M.  &  Co.,  could  not  withdraw  it  from  that  account  without 
the  consent  of  M.     Gibson,  et  al.  v.  Moffat  &  Young,  2  L.  C.  L.  J.  60, 
Q.  B.  1866.     Held,  also,  that  th"  plaintiffs  not  having  alleged  the  in- 
solvency of  M.,  in  their  declaration,  could  not  base  their  right  to  sue 
for  the  whole  of  the  debt  on  such  insolvency,  and  the  allegation  of  his 
insolvency  in  their  special  answer  could  not  avail  to  supply  the  defi- 
ciency in  their  declaration. 

2858.  The  date  of  a  promissory  note  is  proof  that  the  note  was. 


OF   STANDARD   DECISIONS.  395 

made  on  such  date,  and  in  the  case  in  question.  Held,  that  the  party 
could  not  prove  that  the  note  had  been  made  on  a  day  posterior  to  its- 
date,  and  that  in  consequence  it  fell  within  the  operations  of  a  subse- 
quent deed  of  compromise  between  the  respondents  and  their  creditors, 
among  them  was  the  appellant.  Evans  &  Cross,  et  al.,  15  L.  C.  R.  86r 
S.  C.  R.  &  16  L.  C.  R.  469,  &  2  L.  C.  L.  J.  79,  Q.  B.  1866. 

2859.  The  holder  of  a  promissory  note  does  not  require  to  prove 
that  it  was  actually  made  on  the  date  it  bears,  as  the  date  makes  proof 
of  itself.     Hutchins,  et  al.  v.  Cohen  &  Cohen,  14  L.  C.  J.  85,  S.  C.  1869. 

2860.  On  an  appeal  from  a  judgment  condemning  the  defendants- 
jointly  and  severally  to  pay  the  amount  of  the  promissor}r  note  sued 
upon,  Held,  reversing  the  judgment  of  the  court  below,  that  a  promise 
to  pay  at  a  specified  place  is  not  a  promise  to  pay  generally,  and  there 
is  no  liability  on  the  part  of  the  maker  of  a  promissorj'  note  payable  at 
a  specified  place,  unless  proof  be  made  of  a  presentment  and  of  demand 
of  payment  at  such  specified  place,  and  of  neglect  or  refusal  there  to- 
pay  the  amount  of  such  note.     O'Brien  &  Stevenson,  et  al.,  15  L.  C.  R. 
265,  Q.  B.  1865,  2307  C.  C. 

2861.  Given  in  discharge  of  an  antecedent  debt  in  Rhode  Island 
does  not  discharge  the  debt  unless  the  note  is  given  and  received  as 
absolute  payment,  and  the  burden  of  proof  is  on  the  debtor  to  show 
that  it  was  so  given  and  received.     Nor  does  it  make  any  difference 
that  the  makers  of  the  note  so  given  are  fewer  in  number  than  the 
original  debtors.     Nightingale  v.  Chafee,  11  R.  I.  609. 

2862.  Promissory  note  given  for  a  precedent  debt  in  Rhode  Island 
does  not,  prima  facie,  operate  as  absolute  payment  of  the  debt,  but 
rather  as  an  extension  of  credit  or  as  only  conditional  payment ;  and 
if  the  note  at  maturity  is  not  paid,  the  right  to  sue  the  original  debt 
and  enforce  its  securities  revives.     But  though,  prima  facie,  the  note 
has  only  this  effect,  yet  if  it  was  given  and  received  by  the  parties  aa 
absolute  payment  or  satisfaction,  the  debt  will,  upon  proof  that  the 
note  was   so   given   and  received,  be  regarded  as  paid  or  satisfied. 
Wilbur  v.  Jernegan,  11  R.  I.  113  ;  also,  Nightingale  V.  Chafee,  11  R.  I. 
609. 

2863.  The  holder  of  a  negotiable  note,  who  has  bought  it  in  good 
faith,  and  before  its  maturity,  acquires  a  valid  title  to  it,  though  it  be 
shown  that  the  vendor  of  the  note  was  not  its  owner,  and  fraudulently 
disposed  of  it.     R.  N.  Ogden  v.  A.  Marchand,  29  La.  61. 

2864.  The  maker  and  the  indorser  of  a  promissory  note,  although 
not  technically  debtors  in  soledo,  are  yet  liable,  each ,  for  the  whole  debt. 
Paul  Mack  v.  C.  E.  Fortier,  et  al,  29  La.  63. 

2865.  The  pledge  or  sale  of  a  negotiable  instrument  before  its  ma- 
turity carries  with  it  all  the  liens  by  which  the  instrument  is  secured, 
and  by  such  sale,  or  pledge,  the  transferee  divests  of  all  power  to  affect 
the  liens  which  secure  the  instrument.     Mechanics'  Building  Ass.  v. 
C.  L.  Ferguson,  29  La.  548. 

2866.  In  an  action  at  law  on  a  promissory  note,  facts  which  con- 
stitute mere  matter  of  defence,  and  are  available  as  such  in  the  pend- 
ing action,  will  not,  in  general,  entitle  the  defendant  to  equitable  relief. 
Such  affirmative  relief  will  be  granted  only  when  necessary  to  prevent 
wrong  or  injustice.     Bank  v.  Wet/land,  30  Ohio,  126. 

2867.  In  a  suit  by  the  assignee  against  the  assignor  of  a  noter 


396  MONROE'S  DIGEST 

where  diligence  by  suit  against  the  maker  is  not  shown,  the  burden  of 
proof  is  upon  the  plaintiff  to  establish  the  insolvency  of  the  maker. 
Clayes  v.  White,  83  111.  540. 

2868.  In  an  action  upon  a  promissory  note,  alleged  to  have  been 
purchased  by  the  defendant  for  the  plaintiff's  intestate,  with  money  fur- 
nished by  the  latter,  wherein  defendant  pleaded  payment,  it  is  proper 
to  submit  to  the  jury  the  question  whether  the  transaction  constituted 
a  payment  or  a  purchase  of  the  note.     While  the  mere  delivery  of 
money  by  the  payer  to  the  holder  of  a  note  is  presumptive  evidence  of 
payment,  yet  this  presumption  may  be  rebutted  by  circumstances. 
Dougherty  v.  Deeney,  et  al.,  45  Iowa,  443. 

2869.  Where  a  promissory  note  had  been  transferred  by  indorse- 
ment as  collateral  security,  and  then,  before  maturity,  with  the  knowl- 
edge of  the  indorsee,  the  payee  had  sold  it  to  a  third  party,  into  whose 
possession  it  did  not  come  until  after  maturity  :  Held,  that  the  latter 
acquired  it  free  from  equities,  and  occupied  the  position  of  a  good  faith 
indorsee  before  maturity.     Grimm  v.  Warner,  et  aL,  45  Iowa,  106. 

2870.  Where,  at  the  request*  of  the  party  with  whom  he  deals,  one 
makes  his  promissory  note  (which  is  to  be  partial  payment  for  a  piece 
of  work  to  be  done  for  him)  payable  to  a  third  party,  who  is  a  creditor 
-of  the  party  with  whom  he  contracts  for  the  work,  and  it  is  credited 
by  the  payee  to  such  party  in  good  faith,  the  maker  cannot  set  up  a 
failure  of  consideration,  as  between  himself  and  the  party  with  whom 
he  deals,  in  defence  of  a  suit  upon  such  note,  in  the  name  of  the  payee. 
So.  Boston  Iron  Co.  v.  Brown,  63  Maine,  139. 

2871.  In  an  action  upon  an  unindorsed  promissory  note,  by  a  plain- 
tiff alleging  himself  to  be  the  owner  thereof  by  devise  from  the  payee, 
the  representative  of  the  latter  should  be  made  a  party  defendant,  or 
the  complaint  should  allege  that  there  is  no  such  representative  ;  but  a 
failure  to  object  to  such  defect  is  a  waiver  thereof.     St.  John  v.  Hard- 
-wick,   11   Ind.   251 ;  also,  Strong  v.  Downing,  34   Ind.  300  ;  Shane  v. 
Lowry,  48  Ind.  205 ;  Shirts  v.  Isom,  54  Ind.  13  ;  Bray  v.  Black,  57 
Ind.  417. 

2872.  Where  a  woman  assigns  by  delivery  a  note  payable  to  her 
•order,  and  afterwards  marries  the  maker,  her  indorsement  after  such 
marriage  transfers  the  legal  title.     The  statutes  of  Maine  give  no 
mutual  right  of  action  to  the  husband  and  wife,  and  none  such  exists 
by  common  law.     Such  has  been  the  uniform  construction  of  this  and 
similar  statutes  in  Maine  and  Massachusetts.     Crowther  v.  Crowther, 
55  Maine,  358  ;  also,  Guptill  v.  Home,  63  Me.  405. 

2873.  Evidence  to  impeach  a  promissory  note  in  the  hands  of  a 
bona  fide  purchaser  for  value,  before  maturity  and  without  notice  is 
inadmissible.      Waite  v.  Chandler,  63  Me.  257. 

2874.  A  married  woman  with  the  consent  of  her  husband  may 
make  an  equitable  assignment  of  a  note  and  mortgage  executed  to  her, 
by  the  sale  and  mere  delivery  of  the  same  to  another.     Baker  v.  Arm- 
strong, 57  Ind.  189. 

2875.  The  holder  of  a  solidary  note  cannot  have  its  solidarity  im- 
paired, by  the  unauthorized  action  of  his  collection  agent,  who  receipts 
in  favor  of  one  of  the  solidary  debtors  on  the  note  for  "  his  share  "  of 
the  debt.     Cooley  v.  Broad,  29  La.  345. 

2876.  The  holder  of  a  negotiable  note  of  a  married  woman,  who 


OF  STANDARD   DECISIONS.  397 

has  taken  it  for  value,  and  before  maturity,  is  yet  liable  to  have  pleaded 
against  him  every  defence  arising  out  of  the  wife's  incapacity.  Conrad, 
et  al.  v.  Lee  Blanc,  Sheriff,  29  La.  123. 

2877.  In  respect  to  the  time  within  which  it  is  necessary  to  pre- 
sent for  payment  a  note,  pa3rable  on  demand,  in  order  to  charge  an  in- 
dorser,  that  u  it  depends  upon  so  many  circumstances  to  determine 
what  is  a  reasonable  time  in  a  particular  case,  that  one  decision  goes- 
but  little  way  in  establishing  a  precedent  for  another."     Seaver  v, 
Lincoln,  21  Pick.  267. 

2878.  Where  in   renewal  of  a  matured  promissory  note  executed 
by  his  decedent,  the  administrator  or  executor  of  an  estate,  as  suchr 
executes  to  the  payee  a  new  promissory  note,  he  thereby  becomes  per- 
sonally liable,  but  the  estate  is  not  bound.     Cornthwaite  v.  The  First 
Nat.  Bank,  etc.,  57  Ind.  268;  also,  Mills  v.  Kuykendall,  2  Blackf.  47r 
and  Garter  -v.  Thomas,  3  Ind.  213. 

2879.  Where  a  bill  is  accepted  by  a  firm,  a  notarial  certificate  of 
protest  must  state  who  compose  the  firm,  and  upon  which  of  them  the 
demand  was  made.     Oswego  County  Bank  v.  Warren,  18  Barb.  N.  Y. 
290. 

2880.  When  the  indorser  of  a  note  lives  in  a  different  place  from 
that  in  which  presentment  or  demand  is  to  be  made,  personal  service 
of  notice  of  protest  is  not  required,  but  the  notice  may  be  served  on 
him  by  mail,  although  he  lives  in  the  same  place  with  the  holder  who- 
serves  the  notice.     Delivery  to  a  city  letter-carrier  of  a  notice  of  pro- 
test enclosed  in  an  envelope,  properly  addressed  and  with  postage  paid, 
is  good  service  by  mail. 

2881.  Where  a  note  held  in  New  York  was  payable  in  Kutztownr 
Pennsylvania,  and  the  holder  placed  it  in  a  New  York  city  bank  for 
collection,  which  sent  it  to  its  Pennsylvania  correspondent,  a  bank  at 
Allentown,  within  eighteen  miles  of  Kutztown,  whence  it  was  sent  to 
a  bank  at  Philadelphia,  and  thence  to  a  bank  in  Reading,  and  thence 
to  Kutztown  for  presentment,  where  it  was  dishonored  :     Held,  that 
each  agent  for  transmission  of  the  note  for  collection,  having  indorsed 
it,  was  the  holder  for  the  purpose  of  receiving  and  giving  notice  of 
protest ;  and  that  the  return  of  such  notice  by  the  same  channel,  each 
bank  forwarding  them  by  the  next  mail,  was  not  an  unnecessary  and 
unreasonable  delay  which  discharged  the  first  iudorser.      Wynen  v. 
Schappert,  55  How.  Pr.  N.  Y.  156. 

2882.  In  an  action  by  an  assignee,  on  a  promissory  note  payable 
in  a  bank  of  this  State,  where  the  defences  pleaded  by  the  defendant 
maker  were  want  of  consideration,  and  that,  after  the  execution  of  the 
note  and  before  its  assignment,  the  payee  thereof,  with  the  knowledge 
of  the  plaintiff,  but  without  the  knowledge  or  consent  of  the  defendant, 
had  procured  the  execution  of  such  note  by  a  third  person,  the  plain- 
tiff replied,  that  before  procuring  such  assignment  to  himself,  he  had 
taken  such  note  to  the  defendant,  who,  in  answer  to  his  inquiries  con- 
cerning it,  informed  him  that  he  had  no  defence  thereto,  and  would 
pay  it,  and  that,  relying  upon  such  statements,  the  plaintiff  had  pro- 
cured an  assignment  of  the  note,  for  value.     Held,  on  demurrer,  that 
the  reply  is  sufficient.       Vaughn  v.  Ferrall,  57  Ind.  182. 

2883.  The  defendant  pleaded  a  general  denial,  there  having  been 
no  notice  of  protest  given  him.     The  plaintiff  answered  that  a  verbal 


398  MONROE'S  DIGEST 

notice  had  been  given  to  the  defendant,  and  examined  a  notary  to 
prove  the  giving  of  such  verbal  notice.  The  action  was  nevertheless 
dismissed.  Cowan  v.  Turgeon,  1  Rev.  de  Leg.  231,  Q.  B.  1832;  2303 
and  2327  et  seq.  C.  C. 

2884.  An  indorsed  note  was  discounted  by  a  bank  for  the  drawer, 
at  maturity  he  took  it  up  by  a  similar  note  on  which  the  indorsements 
were  forged,  and  destroyed  the  original  note;  he  took  up  the  second 
note  by  another  note  with  forged  indorsements.     Held,  that  taking  the 
last  two  notes  in  renewal  did  not  extinguish  the  original  note.     The 
record  of  the  protesting  notary  being  proved  to  contain  a  true  copy  of 
the  first  note,  was  admissible  in  evidence.     The  bank  who  discounted 
the   first  note  was  entitled  to  recover,  on  proof  of  its  destruction  and 
the  genuineness  of  the  signatures.     Bitter  v.  Ringmaster,  73  Penn.  400. 

2885.  Purchaser  of  a  mortgage  from  the  assignee  of  a  mortgage 
is  put  on  inquiry  as  to  his  vendor's  title,  by  the  latter's  failure  to 
transfer  all  the  securities.     An  assignment  of  a  mortgage  does  not 
transfer  undelivered  collateral   securities  unless  the  parties  so  intend 
and  a  consideration  is  paid.     Fletcher  \.  Carpenter,  37  Mich.  412. 

2886.  A  note  was  given  for  additional  stock  in  a  manufacturing 
•company.     Held,  that  evidence  of  a   parol  agreement  when  the  note 
was  executed  that  it  was  not  to  be  paid  except  on  a  contingency,  was 
inadmissible. 

2887.  Hacker  subscribed  for  additional  stock  in  a  corporation  and 
flhe  gave  her  note  for  the  amount ;  a  certificate  was  tendered  her  and 
refused,  and  no.  credit  was  given  her  in  the  stock  ledger.     Held,  the 
note  was  not  without  consideration  ;  she  had  the  right  to  demand  and 
receive  the  stock.     Hacker  v.  National  Oil  Co.,  73  Penn.  St.  93. 

2888.  If  the  protest  for  the  non-payment  of  a  promissory  note  be 
premature,  or  if  time  be  given  by  the  holder  to  the  maker,  the  indorser 
is  discharged,  but  if,  with   a   knowledge  of  the  protest  having  been 
made  or  of  the  giving  of  time,  he,  the  indorser,  subsequently  promises 
to  pay,  his  liability  is  revived.      The  City  Bank  v.  Hunter  &  Maitland, 
2  Rev.  de  Leg.  171,  Q.  B.  1847. 

2889.  A  promissory  note  not  yet  due  does  not  constitute  a  debt 
within  the  meaning  of  section  63  of  the  common  Law  Procedure  Act, 
1856,  which  can  be  attached  to  answer  a  judgment  debt.     Motion  to 
attach  the  amount  of  a  promissory  note.     Plaintiff  had,  in  October, 

1876,  obtained  a  judgment  against   the  defendant  for  £73.  19s.  lid., 
which   was  still   unsatisfied.     The   promissory  note,  the  amount  of 
which  was  sought  to  be  attached,  had  been  passed  by  one  John  Griffin 
to  the  defendant  for  the  sum  of  £100,  payable  on  the  28th  of  February, 

1877,  and  consequently  not  due  at  the  time  of  the  present  motion. 
The  note  was  in  the  hands  of  the  defendant,  and  it  was  deposed  that 
Griffin  was  liable  to  the  payee  in  the  amount  thereof.     Morris,  C.  J. — 
You  have  no  case  of  such  an  order  made  in  this  country  to  attach  the 
amount  of  a  promissory  note.     Keogh,  J. — I  have  refused  similar  ap- 
plications on  several  occasions.     Lawson,  J. — This  being  a  negotiable 
instrument,  no  order  can  prevent  its  being  indorsed  over.     Morris,  C. 
J.  said  further — What  evidence  of  a  debt  is  there  in  a  promissory  note  ? 
There  may  have  been  no  consideration.     We  will  not  make  a  prece- 
dent.    Motion  refused.     Pyne  v.  Kinna,  Irish  Reports,  Common  Law 
Series,  Vol.  11,  p.  40. 


OP  STANDARD   DECISIONS.  399 

2890.  A  note  was,  "  twelve  months  after  date  (or  before,  if  made 
out  of  the  sale  of  "—a  machine),  "  I  promise  to  pay  to  J.  F.  Huston  or 
bearer  "  etc.     Held,  to  be  negotiable.     A  note  to  be  negotiable  must  be 
for  the  payment  of  money  at  a  fixed  period  on  an  event  which  must 
inevitably  happen.     Ibid. 

2891.  A  note  is  not  negotiable  if  its  payment  depends  upon  a 
contingency,  although  that  may  in  fact  happen.     Ibid. 

2892.  A   note  may  be  negotiable  if  payable  certainly  at  a  fixed 
time,  although  subject  to  a  contingency   under  which  it  may  become 
due  earlier.     Ibid.     Ernst  v.  Steckman,  74  Penn.  St.  Repts.  13. 

2893.  The  sale  and  delivery  of  a  negotiable  promissory  note  with 
indorsement  thereon  are  a  warranty  of  the  genuineness  of  the  indorse- 
ments.    Allen  v.  Clark,  49  Rowell,  Vt.  390. 

2894.  By  the  general  commercial  law  a  promissory  note  does  not 
extinguish  the  debt  for  which  it  is  given,  unless  such  be  the  express 
agreement  of  the  parties  ;  it  only  operates  to  extend  until  its  maturity 
the  period  for  the  payment  of  the  debt.     The  creditor  may  return  the 
note  when  dishonored,  and  proceed  upon  the  original  debt.     The  ac- 
ceptance of  the  note  is  considered  as  accompanied  with  the  condition 
of  its  payment.      The  Kemball,  3  Wall.  U.  S.  37. 

2895.  An  instrument   executed    by  plaintiff  in  this  form,  "  Re- 
ceived of  D.  M.  Peyser  five  hundred  dollars  due  on  demand,"  was  set 
up  as  a  counterclaim ;  held,  that  it  was  open  to  explanation  as  to  its 
consideration,  and  the  circumstances   under  which  it  was  given  ;  and 
that,  evidence  having  been  received  without  objection,  tending  to  show 
that  it  was  given  upon   payment   by  Peyser  to  plaintiff  of  the  sum 
specified,  which  was  then  due  from  the  former  to  the  latter,  and  was 
intended  simply  as  a  receipt,  a  submission  of  the  question  to  the  jury, 
and  a  finding  to  that  effect  were  justified.     De  Lavallette  v.  Wendt,  75 
N.  Y.  579. 

2896.  This  action  was  brought  by  the  assignees  in  bankruptcy, 
of  the  members  of  the  firm  of  P.  &  Co.,  to  recover  the  value  of  three 
notes  and  certain  insurance  scrip,  alleged  to  have  been  transferred  to 
defendant  in  violation  of  the  Bankrupt  Law.     The  following  facts  ap- 
peared on  the  trial :     Defendant  was  the  New  York  correspondent  of 
said  firm,  who  were  private  bankers,  doing  business   at   Watertown  ; 
said  firm  became  indebted  to  defendant  upon  overdrafts  and  indorsed 
paper,  which  indebtedness  gradually  increased  up  to  November,  1874. 
Defendant,  thereafter,  gave  no  fresh  credits,  and  made  repeated  efforts, 
without  success,  to  reduce  this  indebtedness.     In  December,  defendant 
refused  to  pay  checks  of  P.  &  Co.  ;  drafts  drawn  by  said  firm,  and  a 
firm  note  held  by  defendant  were  protested.     In  June,  1874,  P.  &  Co. 
deposited  with  defendant  certain  notes  as  collateral  for  a  loan,  a  part 
of  which  were  sent  by  defendant,  in  December,  to  P.  &  Co.  for  collec- 
tion, upon  their  promise  to  remit  when  collected.     On  January  8, 1875, 
defendant  was  advised  by  P.  &  Co.  that  they  had  delivered  certain  of 
said  notes  to  another  party,  crediting"  themselves,  on  account  thereof, 
with  two  drafts  drawn  by  defendant  upon  them.     This  claim,  to  so 
credit  the  drafts,  was  wholly  unwarranted  ;  defendant  wrote  the  next 
day  repudiating  it,  and  demanding  a  return  of  the  notes  or  immediate 
remittance;  and,  on  January  eleventh,  sent  a  special  messenger,  to 
whom  P.  delivered  the  next  day  the  three  notes  in  question,  which  be- 


400  MONROE'S  DIGEST 

longed  to  his  firm,  and  the  insurance  scrip,  which  belonged  to  himselfT 
and,  also,  the  residue  of  the  notes  sent  for  collection  ;  the  new  securi- 
ties were  received  in  place  of  the  notes  so  disposed  of  by  P.  &  Co.,  and 
were  of  considerable  less  value.  P.  &  Co.  were  at  the  time  insolvent ; 
they  suspended  business  January  sixteenth.  Held,  that  the  evidence 
justified  a  finding  that  defendant  knew,  or  had  reasonable  cause  to  be- 
lieve, at  the  time  it  received  the  securities  in  question,  that  P.  &  Co. 
were  insolvent ;  also,  that  the  transaction  could  not  be  considered  as 
an  exchange  of  securities,  but  a  settlement  of  a  claim  for  the  conver- 
sion of  the  diverted  notes  ;  and  that,  defendant  having  taken  the  se^ 
curities  with  knowledge  of  the  insolvency,  it  was  an  unlawful  prefer- 
ence within  the  provisions  of  the  Bankrupt  Act.  Upham  v.  N.  Y.  L.  & 
T.  Co.,  76  N.  Y.  1. 

2897.  Where,  upon  the  maturity  of  a  promissory  note  given  for  a- 
usurious  loan,  for  the  purpose  of  an  extension,  the  borrower  delivers 
to  the  lender  a  new  note,  by  its  terms  made  payable  to  a  third  person, 
which   note    is  transferred  by  the  lender  to  said  third  person,  it  is 
tainted  with  the  usury,  and  is  void  in  the  hands  of  the  payee,  although 
he  received  the  same  in  good  faith  and  without  knowledge  of  the  usury. 
Treadwell  v.  Archer,  76  N.  Y.  196. 

2898.  The  new  note  being  taken  by  the  usurer  is  equally  void,  as 
if  it  had  been  taken  in  his  own  name;  and  the  maker  is  not  estopped 
by  the  fact  that  the  promise  is  in  form  made  direct  to  the  holder. 
Treadwell  v.  Archer,  76  N.  Y.  196. 

2899.  It  seems,  that  if  the  note  had  been  taken,  under  the  same 
circumstances  of  innocence,  directly  from  the  maker  to  the  payee,  in 
pursuance  of  an  agreement  to  take  it  in  discharge  of  a  debt  due  to  him 
from  the  lender,  the  maker  would  be  estopped,  and  the  payee  could  re- 
cover upon  the  note.      Treadwell  v.  Archer,  76  N.  Y.  196. 

2900.  Where,  at  the  time  of  the  execution  of  a  promissory  noter 
in  the  usual  form,  by  a  married  woman,  she  executes  another  paper  ap- 
pended thereto,  declaring  her  intent  to  charge  her  separate  estate  with 
the  payment  of  the  note,  the  two  instruments  are  to  be  construed  as 
one,  and  the  note  may  be  enforced  against  her.      Treadwell  v.  Archer, 
76  N.  Y.  196. 

2901.  In  an  action  upon  a  promissory  note,  where  the  makers  al- 
lege and  prove,  that  the  note  was  executed  for  the  accommodation  of 
the  indorser,  and  was  by  the  latter  fraudulently  diverted  from  the  use 
intended,  the  burden  is  upon  the  defendant  to  show  that  he  is  a  bona 
fide  holder  for  value,  without  notice.     Nickerson  v.  Ruger,  76  N.  Y. 

279. 

2902.  In  an  action  upon  a  note  the  makers  admitted  the  execution 
thereof  by  them,  but  denied  the  indorsement  by  the  payee,  and  alleged 
that  the  note  was  not  made  for  value^but  was  fraudulently  obtained  by 
the  payee,  and  that  the  plaintiff  was  not  a  holder  for  value.     On  the 
trial  plaintiff's  bookkeeper,  called  by  them  as  a  witness  to  prove  the  in- 
dorsement, on  cross-examination,  testified,  in  substance,  that  he   re- 
ceived the  note  before  maturity,  and  that  he  gave  nothing  when  he  re- 
ceived it.     On   re-direct  examination  he  testified,  that  for  the  note  he 
surrendered,  a  short  time  after  he  received  it,  two  other  notes  of  the 
payees    held   by   plaintiffs,   which   had  been   protested.      Defendants 
offered  to  prove  that  the  note  was  given  without  consideration,  it  hav- 


OF   STANDARD   DECISIONS.  401 

ing  been  sent  by  them  to  the  payee  to  take  up  another  note  given  as 
collateral  security,  for  his  accommodation,  and  that  he  did  not  take  up 
the  other  note  ;  this  was  objected  to,  upon  the  ground  that  defendants 
had  not  laid  any  foundation  for  the  evidence,  by  showing  that  plaintiffs 
were  not  innocent  holders  for  value.  The  objection  was  sustained. 
Held,  error  ;  that  if  the  offered  proof  had  been  made  the  burden  would 
have  been  cast  upon  plaintiffs  to  show  that  they  were  bona  fide  holders 
for  value ;  and  that  defendants  did  not  lose  the  benefit  of  their  excep- 
tions by  giving  other  evidence  in  an  ineffectual  attempt  to  lay  a  foun- 
dation for  the  rejected  testimony  in  accordance  with  the  ruling  of  the 
court.  Nicker  son  v.  Buger,  76  N.  Y.  279. 

2903.  A  notice  to  a  member  of  a  firm,  indorsers  of  certain  prom- 
issory notes,  that  the  makers  have,  on  demand,  refused  payment,  is 
good  if  sent  to  what  had  been  the  place  of  business  of  the  firm,  where 
its  affairs  are  actually  in  process  of  settlement  under  a  trust  deed  of 
assignment,  the   firm  being  insolvent ;  it  being  the  place  where  the 
member  expected  that  notices  and  letters  would  be  sent  to  him,  and 
had  arranged  that  if  sent  there  they  should  be  handed  to  his  counsel  to 
be  forwarded  to  him,  and  there  was  no  other  place  of  business  of  the 
firm,  or  of  the  member,  and  he  had  absconded.     And  notice  so  sent  is 
good,  although  the  court  finds  that  the  member's  family  was  residing 
in  a  town  which  was  the  member's  domicile,  because  he  intended  to  re- 
turn there  when  he  thought  he  was  safe  from  arrest.     Bank  of  Amer- 
ica v.  Shaw,  7  N.  E.  Rep.  779,  Mass.  July,  1886.     Citing:  Chateau  v. 

Webster,  6  Mete.  Mass.;  Young  v.  Durgin,  15  Gray,  264 ;  Bliss-v. 
Nichols,  12  Allen,  443  ;  Callahan  v.  Bank  of  Kentucky,  6  Ky.  Law 
Rep.  Oct.  1884.  Contra  :  Parsons'  Bills  &  Notes,  499,  450  ;  Story  on 
Bills,  §§  305,  389 ;  Chitty  on  Bills,  228  ;  Daniel  on  Neg.  Inst.,  §  1002,  § 
2,  p.  998;  Exparte  Moline,  19  Yes.  216  ;  Robs.  Bankr.  178  ;  Fassin  v. 
Hubbard,  55  N.  Y.  465  ;  Wilkins  v.  Com.  Bank,  6  How.  (Miss.)  217  ; 
Bank  of  Auburn  v.  Putnam,  3  Keyes,  344  ;  House  v.  Vinton  Co.,  Natl. 
Bank,  (Ohio,)  1  N.  E.  Rep.  129 ;  'in  re  Bellman,  L.  R.  4  Ch.  Div.  795 ; 
Byles  on  Bills,  216. 

2904.  A  promissory  note  is  evidence  of  indebtedness  and  the  sub- 
stitution of  one  note  for  another  does  not  discharge  the  debt  evidenced 
thereby,  nor  release  the  security  given  for  its  payment,  as  between 
the  immediate  parties  it  is  competent  for  them  to  change  the  time  and 
mode  of  payment  and  still  retain  the  mortgage  security.      Williams  v. 
Starr,  5  Wis.  534. 

2905.  Any  material  erasure  or  interlineation  in  a  note  will  vitiate 
it  unless  explained — not  so  if  it  be  wholly  immaterial.      Williams  v. 
Starr,  5  Wis.  534. 

2906.  Bill  notes — when  a  contract  under  seal  must  be  so  recited 
in  body  thereof.     Mere  addition  of  scroll  after  signature  insufficient. 
Skrine  v.  Lewis,  66  Ga. 

2907.  Parol  evidence  is  admissible  to  show  want  or  failure  of  con- 
sideration of  note.     Oertel  v.  Schroeter,  48  111. 

2908.  In  an  action   by  a  national  bank  upon  a  promissory  notey 
one  count  of  the  answer  alleged,  in  substance  that  the  note  was  pre- 
sented  by  its  makers  to  plaintiff  for  discount  for  their  sole  benefit 
which  was  known  to  the  plaintiff;  that,  it  discounted  the  note  and  "  then 
and  there,  knowingly,  corruptly  and  usuriously  deducted  therefrom 

26 


402  MONKOE'S  DIGEST 

and  took,  received,  reserved  and  charged  by  way  of  discount  *  * 
*  *  *  for  the  loan  and  forbearance  of  the  sum  of  money  secured 
by  said  note"  a  sum  of  money  much  greater  than  seven  per  cent.,  for 
the  time  the  note  had  to  run,  *****  an(j  aske<3  that  the. 
interest  paid,  and  that  which  the  note  carried  with  it  should  be 
adjudged  to  be  forfeited.  Held,  that  said  count  sufficiently  set  forth 
a  corrupt  and  usurious  agreement  and  was  good  as  a  plea  of  usury, 
that  the  facts  stated  established  a  case  within  the  meaning  and  intent 
of  the  provisions  of  the  National  Banking  Act  in  reference  to  usury  * 
authorizing  forfeiture  of  the  interest  and  that  the  same  was  available 
as  a  defence  by  way  of  set-off  or  rebatement ;  and  that  the  recovery 
should  be  limited  to  the  money  actually  loaned  without  interest.  To 
create  a  forfeiture  under  said  provision  it  is  sufficient  that  the  usu- 
rious interest  has  been  taken,  received  or  charged  ;  the  provision  is  not 
limited  to  cases  where  the  note  upon  its  face  carries  interest  with  it. 
An  accommodation  indorser  has  the  same  right  as  the  maker  to  the 
benefit  of  the  forfeiture  given  by  said  act  by  way  of  set-off  or  rebate- 
ment when  sued  alone  upon  his  indorsement.  Where  the  note  in  suit 
is  the  last  of  a  series  of  renewed  notes,  the  original  loan  being  usu- 
rious, the  taint  of  usury  affects  the  whole  ;  the  forfeiture  of  the  entire 
interest  follows  and  credit  must  be  given  for  all  the  interest  which  has 
been  paid  from  the  beginning  of  the  transaction.  Nat.  Bank  of  Au- 
burn v.  Lewis,  75  N.  Y.  516 ;  modified  on  reargument,  81  N.  Y.  15 
q.  r. 

2909.  Presumption  of  delivery  by  the  maker  arising  from  the 
possession  and  production  of  a  promissory  note  by  the  payee  is  very 
much  weakened  if  not  destroyed  in  case  where  maker  is  dead  and  the 
payee  one  of  his  executors,  and  such  possession  is  not  shown  to  ante- 
date the  possession  of  all  the  maker's  papers  and  effects  by  the  payee, 
and  where  the  note  appears  to  be  all  in  the-  handwriting  of  the  deced- 
ent and  to  have  been  taken  with  stub  attached  also  in  his  handwriting 
from  a  blank  book  belonging  to  him  and  where  installments  of  interest 
falling  due  in  the  maker's  lifetime  were  not  paid,  and  although  years 
elapsed  after  they  so  became  due  before  his  death,  there  is  no  proof  of 
demand  upon  or  of  recognition  of  liability  by  the  payee.     Cowee  v. 
Cornell,  75  N.  Y.  91  ;  Stettheimer  v.  Killip;  Ibid.  282. 

2910.  A    promissory   note   pa.yable  on  demand  is  barred  by  the 
statute   of  limitations   at   the   expiration  of  six  years  from  its  date. 
De  Lavallette  v.  Wendt,  75  N.  Y.  579. 

2911.  A  note  for  $20,000  was  transferred  to  plaintiff  after  the 
death  of  the  payee,  plaintiff  giving  therefor  his  own  note  for  $19,000, 
payable  in  one  year  from  date  which  note  was  still  in  the  possession 
of  the  payee.     Held,  that  plaintiff  was  not  a  bona  fide  purchaser  for 
value  and  that  the  consideration  of  the  note  was  open  to  inquiry ;  but 
that  where  the  parties  dealt  upon  equal   terms  mere  inadequacy  of 
consideration  was  not  a  matter  with  which  the  Court  will  interfere. 
Cowee  v.  Cornell,  75  N.  Y.  92. 

2912.  The  right  of  a  creditor  having  two  demands  against  his 
debtor  to  apply  a  payment  received  from  the  latter  to  either,  provided 
no  direction  is  given  is  not  affected  by  equities  existing  between  the 

*  §§  5197-5198. 


OF   STANDARD   DECISIONS.  403 

debtor  and  a  third  person  of  which  the  creditor  had  no  notice.  The 
mere  fact  that  there  is  a  surety  for  one  of  the  debts  does  not  preclude 
the  creditor  from  applying  a  payment  so  received  to  the  debt  for 
which  he  has  no  security.  Harding  v.  Tifft,  75  N.  Y.  461. 

2913.  The  note  in  suit  was  for  $1,000  payable  with  interest  at  six 
per  cent.     Plaintiff  was  permitted  to  prove  statement  of  the  deceased 
made  soon  after  the  date  of  note  to  the  effect  that  he  had  borrowed 
$1,000  of  plaintiff  and  given  his  note  for  it  at  six  per  cent.     Held,  no 
error.     Bardin  v.  Stevenson,  75  N.  Y.  164. 

2914.  Where  the  genuineness  of  a  signature  is  in  question  in  an 
action,  experts   in   handwriting  who  have  no  other  knowledge  of  the 
handwriting  of  the  persoji  whose  signature  the  one  in  question  pur- 
ports to  be,  than  that  derived  by  a  comparison  in  court  of  such  sig- 
nature with  other  signatures  of  the  person  to  instruments  proved  and 
properly  in  evidence,  are  competent  as  witnesses  to  give  their  opinion, 
derived  from  such  comparison,  as  to  the  genuineness  of  the  disputed 
•signature,  and  as  to  whether  it  appears  a  natural  or  simulated  hand. 
Miles  v.  Loomis,  75  N.  Y.  287. 

2915.  Where  in  an  action  upon  a  promissory  note  indorsed  by  de- 
fendant for  the  accommodation  of  S.  &  H.,  defendant  offered  to  prove 
that  a  sum  of  money  paid  by  S.  to  plaintiff  without  direction  as  to  ap- 
plication, and  which  was  applied  by  plaintiff  upon  another  note  made 
by  S.  &  H.  held  by  him,  was  raised  by  the  makers  upon  a  note  in- 
dorsed by  defendant  for  the  purpose   of  having  the  proceeds  applied 
upon  the  note  in  suit.     Held,  that  in  the  absence  of  proof,  or  of  an 
offer  to  prove,  that  knowledge  of  this  fact  was  communicated  to  plain- 
tiff, the  evidence  was  properly  excluded.     Harding  v.  Tifft,  75  N.  Y. 
461. 

2916.  By   the   statute   of  Illinois,  the   assignor  of  a  promissory 
note  is  liable  on  his  contract  of  assignment,  only  in  case  the  assignee 
has,  by  the  exercise  of  due  diligence,  obtained  judgment  against  the 
maker,  and  a  return  of  nulla  bona,  unless  such  suit  would  have  been  im- 
practicable or  unavailing.      Wills,  et  al.  v.  Claflin,  et  al.,  92  TJ.  S.  135. 


PROTESTS. 

2917.  The  husband  being  universal  legatee  of  his  wife  indorsed 
•for   her-  a   promissory   note.     Held,   that  he   was   bound  to  pay  the 
amount   of  the'  note,  notwithstanding  there  was  no  protest,  it  being 
.sufficiently  established  that  he  had  consented  in  the  name  of  his  wife 
to  waive  protest  in  order  to  avoid  costs,  and  that  in  fact  the  wife  was 
^only  a   dret   nom   to  cover   the   trading   of  the  husband.     Berian  v. 

McCorkill,  14  L.  C.  R.  400,  Q.  B.  1864. 

2918.  In  an  action  against  the  maker  and  indorser  :     Held,  that 
the  omission  to  state  in  a  notarial  protest  that  it  was  made  in  the  fore- 
noon of  the  day  of  protest  was  fatal,  and  the  indorser  was  discharged. 
Joseph  v.  Deli'sle,  et  al.,  1  L.  C.  R.  244,  S.  C.  1851 ;  2319  C.  C. 

2919.  Held,  that  the  non-exhibition  of  the  note  to  the  maker  at 
the  time  of  protest,  the  maker  being  notoriously  insolvent,  will  not  in- 
-validate   the  protest,  and  notice  of  protest  to  the  indorser  will  hold 


404  MONROE'S  DIGEST 

them  liable,  notwithstanding  such  non-exhibition.      Venner  v.  Futvoyer 
et  al,  13  L.  C.  R.  307 ;  S,  C.  1863. 

2920.  The  maker  of  a  note  was  described  in  the  protest,  and  also- 
in  the  writ  and  declaration,  as  E.  B.  P.,  instead  of  Joseph  B.  P.  Heldr 
that  a  plea  by  the  indorser  to  the  effect  that  he  never  indorsed  the 
note  described  by  plaintiff,  and  that  a  protest  of  E.  B.  P.'s  note  was 
not  a  legal  protest  of  J.  B.  P.'s  note  was  bad,  and  would  be  dismissed. 
Scullion  v.  Perry,  et  al.,  9  L.  C.  J.  175,  1  L.  C.  L.  J.  64,  S.  C.  1865. 

2921.  A  promise  to  pay  a  protested  bill  of  exchange,  of  which  no- 
notice  of  protest  has  been  given,  if  made  with  a  knowledge  of  that 
fact,  is  a  waiver  of  want  of  notice.      Ross  v.  Wilson,  2  Rev.  de  Leg, 
28  K.  B.,  1812. 

2922.  In  the  case  of  a  protest  of  a  note  dated  at  Montreal  and 
payable  at  a  bank  in  Albany,  in  the  State  of  New  York,  a  notice  of 
protest  mailed  at  Albany,  addressed  to  an  indorser  at  Montreal,  protest 
being   made,  and  notice   mailed   according  to  the  laws  of  the  State. 
Held,  confirming  court  below,  that  it  was  not  sufficient,  inasmuch  as 
the  postal  arrangements  between  the  two  countries  required  prepay- 
ment of  the  postage,  at  least  from  Albany  to  the  line ;  but,  had  the 
postage  been  paid,  the  notice  would  have  been  sufficient,  as  notice  of 
protest  must  be  given,  accoi'ding  to  the  lex  loci  contractus,  but  the- 
protest  itself  made  according  to  the  law  of  the  place  where  the  note 
was  payable.     Howard  v.  Sabourin,  2  L.  C.  R.  121,  and  5  L.  C.  R.  45r 
Q.  B.  1854. 

2923.  Protested  draft  is  not  an  obligation  within  the  meaning  of  the 
proviso  of  the  Act  of  16th  of  April,  1850,  which  declares  that  the  as- 
signees of  an  insolvent  bank  "  shall  receive  in  payment  of  debts  due  to- 
said  bank  its  own  notes  and  obligations  and  the  checks  of  its  deposit- 
ors at  par."     Basehou  v.  Rhodes,  85  Penn.  44. 

2924.  Notice  of  dishonor  of  a  promissory  note,  where  the  parties 
live  in  different  places  between  which  there  is  a  communication  by 
mail,  and  several  mails  each  day,  must  be  posted  by  the  first  practica- 
ble and  convenient  mail  of  the  next  day  after  dishonor  or  notice  of 
dishonor.     Smith  v.  Poillon,  87  N.  Y.  590. 

2925.  Ordinary  and   reasonable   diligence,  however,  only   is   re- 
quired, and  as  to  what  is  the  first  practicable  and  convenient  mail  de- 
pends upon  circtimstances  and  may  be  controlled  by  usage  and  the 
condition,  situation  and  business  engagements  of  the  party  required  to- 
give  notice.     Smith  v.  Poillon,  87  N.  Y.  590. 

2926.  Whether  sufficient  diligence  has  been  shown,  the  facts  beingf 
undisputed,  is  a  question  of  law.     Smith  v.  Poillon,   87  N.  Y.  590. 

2927.  In  an  action  by  a  second  against  the  first  idorser  upon  a 
promissory  note,  made  in  the  city  of  New  York  by  a  foreign  corpora- 
tion, payable  at  its  office  three  years  after  date,  it  appeared  by  plain- 
tiffs evidence,  that  the  note  was  on  the  last  day  of  grace  presented  for 
payment  by  a  notary  at  an  office  in  said  city,  where  the  corporation 
either  then  or  a  short  time  before  had  its  office,  and  upon  which  was  a 
sign  indicating  that  it  was  the  company's  office.     Payment  was  de- 
manded of  the  person  in  charge,  and  the  note  was  protested  for  non- 
payment.    Defendant's  evidence  tended  to  show  that  said  office  was 
the  last  office  occupied  by  the  company  in  this  State,  but  at  the  time  of 
demand  it  had  ceased  to  be  such  office.     Held,  that  a  defence  based 


OF   STANDARD   DECISIONS.  405 

•upon  the  ground  of  want  of  proper  presentation  and  demand  was  un- 
tenable ;  that  if  the  office,  when  demand  was  made,  was  the  office  of 
the  company,  presentment  was  properly  made  there;  if  not  then  the 
office,  as  it  was  its  last  office,  and  as  the  corporation  had  removed  its 
-office  and  left  the  State,  no  presentment  and  demand  in  any  place  was 
necessary  to  charge  the  indorsers.  Smith  v.  Poillon,  87  N.  Y.  590. 

2928.  Also,  held,  that  the  last  proposition  was  unaffected  by  the 
fact  that  the  complaint  alleged  presentment  and  demand ;  this  did  not 
preclude  proof  that  presentment  and  demand  had  been  waived  or  ren- 
dered unnecessary.     Smith  v.  Poillon,  87  N.  Y.  590. 

2929.  It    appeared  that  the  note  was  protested  March  3,  1873. 
On  the  next  morning  the  notary  caused  notices  to  be  drawn  up,  which 
he  signed,  one  to  defendants,  the  first  indorsers,  one  to  S.,  plaintiff's 
testator,  the  second  indorser,  and  one  to  R.,  cashier  of  a  bank  at  T.,  in 
Maine,  the  last  indorser.     These  notices  the  notary  inclosed   in   an 
envelope  directed  to  R.  at  T.,  and  gave  the  package  to  his  clerk  before 
2  P.   M.  to  mail  in  the  New  York  post  office.     It  was  the  duty  of  the 
-clerk  to  mail  letters  so  delivered,  and  he  had  been  in  the  habit  of  so 
doing  for  years.     The  clerk,  as  a  witness,  testified  that  he  had  no  par- 
ticular recollection  of  this  letter,  but  that  he  mailed  notices  of  protest 
between  1  and  2  p.  M.  that  day,  and  all  the  letters  that  were  given  him. 
Letters  mailed  at  the  time  specified,  if  the  train  made  connection  at 
Boston,  would  reach  T.  on  the  evening  of  March  5th ;  if  not,  they 
'would  reach  T.  at  noon  of  the  6th.     The  notices  reached  their  address 
March  5th  or  6th,  and  R.  by  the  next  mail  mailed  to  S.  at  W.,  his 
place  of  residence,  the  notice  addressed  to  him  and  to   defendants. 
They  were  received  by   S.  on  the  evening  of  March  6th.     There  were 
two  mails  daily  between  T.  and  W.,  a  distance  of  four  miles,  one  leav- 
ing at  10  A.  M.,  the  other  at  1:40  p.  M.     Held,  that  the  evidence  estab- 
lished that  the  notices  were  mailed  in  time  at  N.  Y.,  and  left  no  ques- 
tion for  the  jury.     Smith  v.  Poillon^  87  N.  Y.  590. 

2930.  S.,  who  was  over  eighty  years  of  age,  on  the  morning  of 
March  7th  went  to  T.  to  consult  counsel,  and  there  mailed  to  defend- 
ants the  notice  addressed  to  them  at  N.  Y.,  by  the  mail  leaving  at  1:40 
p.  M.,  which  passed  through  W.  at  2  p.  M.     The  first  mail  leaving  T.  at 
10:10  A.  M.  closed  at  W.  at  9:30  A.  M.     Held,  there  was  no  error  in 
holding,  as  matter  of  law,  that  due  diligence  was  used  by  S.  in  posting 
the  notice.     Smith  v.  Poillon,  87  N.  Y.  590. 

2931.  In    an    action    against    an    accommodation    indorser   of  a 
negotiable  note,  the  fact  that  the  indorser  resided  at  the  time  in  Alex- 
andria, where  the  note  was  discounted,  and  before  the  note  became  due 
he  went  into  the  Confederate  lines,  and  was  there  when  the  note  was 
protested,  and  at  the  time  of  such  protest  he  had  no  known  agent  in 
Alexandria  to  receive  notice  of  the  dishonor  of  the  note,  is  not  of  it- 
self sufficient  to  render  the  indorser  liable. 

2932.  And  in  such  a  case,  the  fact  that  the  indorser  had  a  resi- 
dence in  Alexandria  at  the  time  the  note  was  protested,  and  that  a 
written  notice  of  said  protest  was  left  at  his  residence,  is  not  sufficient 
to  render  the  indorser  liable. 

2933.  In  such  a  case  the  plaintiff  having  purchased  the  note  after 
maturity  and  dishonor,  by  purchase  at  a  sale  of  the  effects  of  a  bank 
•which  had  discounted  it,  he  is  not  thereby  prevented  from  recovering 


406  MONROE'S  DIGEST 

from  the  indorser  the  whole  amount  of  the  note,  though  he  paid  for  it 
much  less  than  the  nominal  amount.  Me  Veigh,  et  al.  v.  Allen,  29 
Grattan  (Ya.)  588. 

2934.  Notice  of  protest  addressed  to  a  female  indorser  and  be- 
ginning "  Sir  "  is  bad,  and  an  action  against  such  indorser  was  dis- 
missed.     Seymour,  et  al.  v.  Wright,  et  al.,  3  L.  C.  R.  454,  S.  C.  1852.. 
But,  held,  in  a  later  case,  to  be  sufficient  if  duly  served  upon  her. 
Mitchell  v.  Browne,  9  L.  C.  J.  168,  and  15  L.  C.  R.  425,  C.  C.  1865. 

2935.  There  must  be  evidence  of  diligence  of  a  protest  for  non- 
payment of  a  bill  of  exchange  to  charge  the  drawer.     Brent  v.  Leesr 
2  Rev.  de  Leg.  335,  K.  B.  1820. 

2936.  Notice  of  dishonor  need  not  be  given  by  a  notary,  it  may 
be  given  by  any  holder  for  himself  and  in  his  own  language ;  but  it  is- 
not  binding,  whatever  its  form,  unless  the  paper  has  been  legally  dis- 
honored ;  and  every  indorser  is   presumed  to  know  what  action  will 
bind  him  arid  what  will  not.     A  letter  addressed  by  the  holders  of  a 
note  to  the  indorser,  describing   the  note  and  stating  that  it  was  un- 
paid and  that  the  holders  looked  to  him  for  payment  is  a  sufficient, 
notice  of  dishonor.     Cromer  v.  Platt,  et  al.,  37  Mich.  132. 

2937.  It   is  incumbent  upon  a  party  seeking  to   charge  an   in- 
dorser, to  prove  a  legal  notice,  but  this,  like  any  other  question  of 
fact,  is  to  be  settled  upon  the  testimony  as  it  is  given,  and  need  not  be 
proved  beyond  the  possibility  of  mistake.     Seaton  v.  Scovill,  18  Kan- 
sas, 433. 

2938.  Where    the    holder,  and    party  to  whom  notice   is   to   be 
given,  reside  at  different  places,  it   is  generally  sufficient  if  notice  is- 
sent  by  the  mail  of   the  day  next  succeeding   the   day   of  dishonor. 
Ibid. 

2939.  The  holder  of  dishonored  paper  may  give  notice  directly  to- 
all  prior  parties,  or  only  to  his  immediate  predecessor  on  the  paper. 
In  the  latter  case,  such  predecessor  has  the  same  time  to  give  notice 
to  his  indorser  as  though  he  himself  had  been  the  holder  and  had  the 
paper  protested.     Ibid. 

2940.  A  banker  or  agent  to  whom  paper  has  been  transmitted 
for  the  purpose  of  obtaining  acceptance,  or  payment,  is,  so  far  as  the 
question  of  notice  is  concerned,  to  be  considered  as  though  he  were  the 
real  holder,  and  his  principal  a  prior  indorser.      Ibid. 

2941.  Where  a  promissory  note  provides  that  the  indorsers  "  waive 
presentment  for  payment,  protest,  and  notice  of  protest  and  non-pay- 
ment," the  complaint  in  an  action  thereon  need  not  allege  "  present- 
ment,"  or  "  notice."     Henderson  v.  Ackelmire,  59  Ind.  540. 

2942.  Where   such   note  waives  notice  of  non-payment,   protest,, 
etc.,  the  complaint  thereon  need  not  aver  such  notice  to  an  indorsee 
Burroughs  v.  Wilson,  85  111.  536. 

2943.  The  defendant  was  sued  as  indorser  on  a  note.     Season- 
able notice  of  its  non-payment  was  sent  to  his  address  at  Baldwin, 
where  he  had  formerly  long  resided  ;  but  at,  and  for  several  years  pre- 
ceding the  maturity  of  this  note,  he  lived  at  Denmark.     There  were 
three  post  offices  in  Baldwin,  neither  of  which  was  designated  simply 
by  the  name  of  the  town  ;  but  notice  of  the  dishonor  of  &  note  matur- 
ing earlier  at  the  same  bank,  addressed  to  him  at  Baldwin  (as  this  was) 
was  received  and  responded  to,  without  any  intimation  that  it  was  not 


OF   STANDARD   DECISIONS.  407 

properly  directed ;  and  upon  inquiry  of  those  likely  to  know,  the 
notary  was  told  he  still  lived  at  Baldwin ;  Held,  that  the  plaintiff's  al- 
legation of  notice  was  sufficiently  proved,  since  legal  notice  is  not, 
necessarily,  actual  notice.  Reasonable  diligence  to  communicate  infor- 
mation of  the  non-payment  of  the  note  is  all  that  is  required,  and  that 
was  issued  in  this  case.  Saco  Nat.  Bank  v.  Sanborn,  63  Maine,  340. 

2944.  The  accommodation  indorser  of  a  promissory  note  wrote  the 
cashier  of  the  bank  where  the  note  was  made  payable,  on  the  day  the 
note    fell  due,  the  note  then  being  in  the  hands  of  an  indorsee  for 
value,  and  the  bank  being  ignorant  of  its  existence,  that  he  would 
"  waive  protest  "  thereon.     Afterwards,  the  indorsee  indorsed  the  note 
to  the  bank  for  collection,  and  the  bank  brought  suit  thereon  against 
the  accommodation  indorser.     Held,  that  as  at  the  time  the  letter  was 
written  and  received  the  bank  had  no  interest  in  or  possession  of  the 
note,  the  letter  was  not,  in  legal  effect,  a  waiver  of  notice  of  protest. 
Nat.  Bank  of  Poultney  v.  Lewis,  50  Vt.  622. 

2945.  The  indorsement  on  a  note,  "  I  hereby  guarantee  the  pay- 
ment of  the  within  note  without  protest,"  is  an  express  waiver  of  de- 
mand and  notice  of  non-payment  and  releases  the  indorser.     Bank  v. 
Hartman,  110  Penn.  196. 

2946.  His  guaranty,  alleged  to  have  been  given  to  the  bank  before 
the  maturity  of  the  note,  was  virtually  a  waiver  of  protest  so  far  as  he 
was  concerned.     Hartman  v.  The  Bank,  103  Penn.  581. 

2947.  Neither  protest,  nor  notice  to  the  surety  of  non-payment  by 
his  principal,  is  necessary  to  bind  a  surety  on  a  promissory  note  pay- 
able in  bank.     Scott  v.  Shirk,  60  Ind.  160. 

2948.  Where  the  intention  of  all  parties  to  an  accommodation  bill 
was  that  it  should  be  met  by  the  last  indorser,  the  previous  indorsers 
cannot  be  sued  unless  they  have  had  notice  of  dishonor.     Turner  v. 
Samson,   Queen's   Bench,   Court  of  Appeal,  1876,  English  Reports, 
195. 

2949.  Notice  to  the  person  named  in  a  will  as  executor  of  the 
non-payment  of  a  promissory  note  indorsed  by  his  testator,  which  be- 
came payable  after  the  will  had  been  offered  for  probate,  and  letters 
testamentary  applied  for,  and  before  the  executor  named  declined  to 
accept  the  trust,  is  sufficient  to  charge  the  estate  ;  but  such  notice  of 
the  non-payment  of  a  note,  which  matured  after  the  executor  had  re- 
nounced the  trust,  and  a  special  administrator  had  been  appointed,  is 
not  sufficient,  although  no  public  notice  of  the  latter's  appointment 
has  been  ordered  or  given.     Goodnow  v.  Warren,  122  Mass.  79. 

2950.  When  an  indorser  of  a  promissory  note  dies  before  the  note 
matures,  notice  of  dishonor  to  his  personal  representatives  is  sufficient 
to  support  a  claim  on  the  indorsement  against  his  heirs  and  devisees, 
without  notice  to  them.     Notice  served  by  the  notary  upon  a  person  in 
charge  of  the  administrator's  usual  place  of  business,  is  legal  service, 
and   its    validity  is  not  impaired  by  the  notice  not  being  addressed 
to  the  decedent.     When  the  notary  knows  of  the  indorser's  death,  and 
knows  who  and  where  his  personal  representatives  are,  a  service  of 
notice  by   mail,  addressed  to  "  executors,"  "  administrators,"  or  "  per- 
sonal representatives,"  is  not  sufficient.     They  should  be  addressed  by 
name,  and  not  by  their  office  merely.     Smalley  v.  Wright,  40  N.  J.  L. 
R.  471. 


408  MONROE'S  DIGEST 

2951.  One  who  is  publicly  acting  as  the  deputy  of  a  notary,  and 
whose  oath  of  office  has  been  administered  by  the  notary  himself,  is 
qualified  to  make  demand  of  payment,  and  perform  the  other  functions 
of  a  deputy  notary.     Buckley  v.  Seymour,  30  La.  1341. 

2952.  The  record  of  the  proceedings  of  a  notary  public  on  the  pro- 
test of  a  promissory  note,  unless  verified  by  his  affidavit,  is  incompe- 
tent as  evidence ;  but  if  no  objection  be  made  when  it  is  offered  in  evi- 
dence, the  objection  cannot  be  raised  on  a  motion  for  a  new  trial,  nor 
on  writ  of  error.     Etheridge  v.  Gallagher,  55  Miss.  458. 

2953.  In  an  action  against  an  indorser  of  a  promissory  note,  proof 
that  notice  of  protest  was  duly  mailed  and  directed  to  him  at  a  certain 
place,  if  there  be  no  evidence  that  it  is  his  place  of  residence  or  of 
business,  or  his  nearest  post  office,  or  the  one  where  he  receives  his 
anail,  is  not  sufficient   proof  of .  the  notice  required.     If  the  indorser 
had  no  known  place  or  residence  or  of  business,  notice  to  him  was  not 
necessary;  but  this  fact  must  be  shown  in  evidence.     Ibid. 

2954.  Where  a  note  fell  due  on  the  25th  of  July,  1873,  on  which 
day  it  was  duly  presented  for  payment  and  protested,  but  the  notice 
of  protest,  dated  on  the  26th,  incorrectly  stated  that  the  note  was  this 
day  presented  and  protested.     Held,  that  the  notice  was  sufficient,  as 
it  did  not  appear  that  the  indorser  was  misled  by  the  mistake.     Cassidy 
v.  Mansfield,  24  Upper  Canada  Com.  Pleas  Rpts.  383. 

2955.  Two  promissory  notes,  payable  at  any  bank  in  Boston,  were 
presented  when  due,  one  at  the  North  National  Bank,  the  other  at  the 
Webster  National  Bank,  and  demanded  their  payment,  and  the  same 
was  refused ;  the  answer  to  the  demand  being  "  No  funds,''  and  there- 
upon the  notary  mailed  to  the  defendant  notices  of  the  demand,  non- 
payment and  protest  of  said  promissory  notes  (which  notices,  it  was 
agreed,  were  sufficient  in  form),  addressed  to  the  defendant  at  Town- 
send,  Mass.,  where  was  the  principal  post  office  in  the  town  in  which 
he  lived.     It  was  proved  that  the  indorser  usually  received  his  letters 
.at  the  West  Townsend  post  office,  and  that  the  plaintiff  knew  that  he 
lived  and  that  there  was  a  post  office  at  West  Townseud,  and  had 
visited  and  done  business  with  the  indorser  there.     There  was  no  evi- 
dence at  the  trial  that  these  notices  were  received  by  the  defendant 
within  three  days  of  the  time  when  they  were  mailed  to  him  by  the 
notary,  or  that  he  otherwise  within  that  time  had  notice  of  such  de- 
mand, non-payment  and  protest.     Held,  the  holder  of  a  promissory 
note  is  bound  to  use  reasonable  diligence  to  give  the  indorser  immedi- 
ate notice  of  its  dishonor.     It  is  prima  facie  sufficient  to  address  the 
indorser  by  mail  at  the  town  in  which  he  resides,  although  there  are 
several  post  offices  in  the  town,  and  he  receives  his  letters  atone  nearer 
his  residence  and  place  of  business  than  the  principal  post  office,  unless 
the  holder  knows,  or  with  reasonable  diligence  might  have  known,  this 
fact.     Held,  that  the  judge,  sitting  without  a  jury,  was  warranted  in 
ruling  that  the  notice  was  insufficient.     Roberts  v.   Toft,  120  Mass. 
169. 


OP  STANDARD   DECISIONS.  409 


PURCHASER. 

2956.  Purchasers  at  public  judicial  sales  or  under  a  quit-claim 
deed  usually  buy  at  their  own  risk  of  the  regularity  of  title.     McGoren 
v.  Avery,  37  Mich.  120. 

2957.  A  purchaser  of  land  with  notice  of  outstanding  equities 
ma^r   protect  himself  by  purchasing  the  title  of  another  who  was  a 
bona  fide  purchaser,  and  this  will  not  make  him  hold  the  property  as  a 
trustee.     St.  Joseph  Mfg.  Co.  v.  Daggett,  84  111.  556. 

2958.  A  creditor  who  makes  advances  under  the  security  of  a  deed 
of  trust,  in  good  faith,  and  without  notice  of  a  vendor's  equitable  lien 
for  the  purchase  money,  will  be  protected  as  an  innocent  purchaser. 
He  should  show  that  the  vendor  was  seized  in  fee  and  in  possession  of 
the  land.     Oerron  v.  Pool,  31  Ark.  85. 

2959.  W.  conveyed  to  E.  an  undivided  half  part  of  two  lots  of 
land,  and  subsequently  received  from   E.  a  bond  in  a  penal  sum  of 
$4,000,  giving  W.  the  privilege  at  any  time  at  his  option  within  seven 
years  from  the  date  of  the   bond,  to  purchase  the  whole  of  said  two 
estates  for  $8,000,  provided  that  on  such  purchase  E.  should  be  by  W. 
exonerated  from  all  liabilities  and  losses,  past  and  future,  of  a  firm 
whereof  E.  was  a  member.     W.  died  without  having  availed  himself 
of  the  option,  and  more  than  three  years  before  the  expiration  of  the 
time  prescribed.     E.  became  his  administrator.     The  widow  and  chil- 
dren of  W.  filed  a  bill  against  E.,  charging  fraudulent  concealment  of 
the  bond.     E.  produced  the  bond,  denying  in  his  answer  the  charges 
of  the  bill,  whereupon  the  complainants  asked  leave  to  amend  the  bill 
by  a  prayer  that  E.'s  title  to  the  estate  in  question  might  be  declared 
that  of  a  mortgage  for  $8,000 ;  that  the  estate  might  be  sold  to  satisfy 
E.'s  claim,  and  that  an  account  might  be  ordered.     Held,  that  the 
option  of  purchase  given  to  W.  by  the  bond  was  neither  a  chose  in 
action,  nor  a  transmissible  right  of  property,  but  a  personal  privilege 
in   W.,  and  that  on  his  death   E.  was  freed  from  the  bond.     Held, 
further,  that  a  purchase  under  the  option  by  the  administrator  of  W. 
must,  if  made,  be  for  and  in  the  name  of  W.'s  heirs ;  but  as  this  might 
change  the  succession  to  W.'s  property,  W.'s  administrator  could  not 
be  allowed  the  option  given  W.     Held,  further,  that  in  no  case  could 
the  exoneration  required  b}*  the  bond  be  given  by  the  administrator. 
Newton  v.  Newton,  11  R.  I.  390. 

2960.  A  person  to  be  a  bona  fide  purchaser  without  notice,  must 
be  without  notice  of  the  rights  and  equities  sought  to  be  enforced  at 
the  time  of  the  payment  of  the  consideration.     Marsh  v.  Armstrong, 
^20  Minn.  81. 

2961.  Unless  actual  possession  of  goods  sold  has  been  delivered  to 
the  purchaser,  the  vendor  is  not  deprived  of  his  right  of  lien  as  against 
the  assignees  of  the  purchaser,  in  the  event  of  his  insolvency.     Where 
the  vendors  were  also  warehousemen  of  the  goods  sold  under  an  ar- 
rangement with  the  purchasers  to  pay  warehouse  rent :     Held,  that  as 
the  goods  remained  in  the  possession  of  the  vendors  and  no  actual  de- 
livery had  been  make  to  the  purchaser,  the  vendor's  lien  revived  upon 
the  insolvency  of  the  vendees.     Orice  \ .  Richardson,  3  App.  Cas.  (Vic. 
41-42,  Eng.  Law  Reports)  P.  C.  319. 


410  MONROE'S  DIGEST 

2962.  A  creditor  taking  a  chose  in  action  as  collateral  security  for 
a  preexisting   indebtedness  is  not  a  purchaser  for  value.     Ashtorfs  Ap- 
peal, 73  Penn.  153.     Although  a  rule  to  open  a  judgment  and  let  the 
defendant  in  to  a  defence  has  been  discharged  in  a  court  of  law,  the  de- 
fendant is  not  precluded  from  resorting  to  a  court  of  equity  for  relief. 
Ibid. 

2963.  Where  the  plaintiff   purchased  and  paid   for  the  land  in 
question,  and  the  deed  made  to  the  defendant  J.,  under  a  verbal  agree- 
ment that  the  plaintiff  was  to  hold  the  deed,  and  that,  concurrently 
with  taking  the  deed  to  J.,  he  and  his  wife  were  to  execute  a  mortgage 
to  the  plaintiff  to  secure  the  purchase  money  ;  J.  did  execute  the  mort- 
gage, but  his  wife  refused  to  join.     Held,  that  the  plaintiff  was  entitled 
to  judgment  for  the  amount  due  and  that  the  land  be  sold  to  satisfy  it. 
Held,  further,  that  in  such  case  no  title  vested  in  J.,  and  his  wife  ac- 
quired no  dower  or  homestead  rights.     Held,  further,  that  plaintiff 's- 
demand  is  for  the  purchase  money,  as  against  which  homestead   rights 
do  not  prevail.     Bunting  v.  Jones,  78  N.  C.  242  ;  also,  Suit  v.  Suit,  78 
N.  C.  272. 


RECEIPTS. 

2964.  An  instrument  given  by  the  payee  of  a  lost  note,  upon  the 
execution  of  another  note  in  its  stead  by  the  maker,  stipulating  that 
if  the  lost  note  comes  to  hand  it  shall  be  null  and  void,  is  a  receipt, 
and  may  be  contradicted  or  explained  by  parol  evidence.     Willianson 
v.  Reddish,  45  Iowa,  550 ;  also,  Price  v.  Mahoney,  24  Iowa,  582. 

2965.  Receipts  may  be  explained   or  contradicted  by  parol  evi- 
dence.    Dunlap's  Ex'r  v.  Shanklin,  10  West  Virginia,  662. 

2966.  Receipt  of  bank  check  is  not  payment  of  antecedent  debt 
until  it  is  itself  paid.     Phillips  v.  Billiard,  58  Ga.  256. 

2967.  Receipt  under  seal,  given  by  obligee  to  joint  obligor  "  in 
full  satisfaction  for  his  liability "  upon  the  obligation,  releases  the 
co-obligors,  if  the  receipt  itself  does  not  show  a  contrary  intention. 
Hall  v.  Spaulding,  45  Mass.  482. 


RECEIVER. 

2968.  A  receiver  of  an  insurance  company,  holding  notes  given  to 
the  company  and  secured  by  deed  of  trust,  has  the  rightful  power  to 
bid  off  the  property  to  save  a  sacrifice.     He  succeeds  to  the  rights  of 
the  company  in  this  respect.     Jacobs  v.  Turpin,  83  111.  424. 

2969.  Where  a  creditor's  bill  charges  that  the  debtor  has  choses 
in   action,  etc.,  in  his  possession,  and  asks  for  a  discover}',  and  the 
debtor  suffers  the  bill  to  be  taken  as  confessed,  it  is  not  error  to  enjoin 
the  debtor  from  disposing  of  his  property,  and  to  appoint  a  receiver  to 
take  charge  of  the  same.     Runals  v.  Harding,  et  al.,  83  111.  75. 


OF   STANDARD   DECISIONS.  411 

2970..  Receiver  of  a  bank,  appointed  under  Gen.  Stat.  R.  I.  cap. 
140,  may  bring  suit  in  his  own  name  for  a  debt  due  to  the  bank.  De 
Wolf  v.  Sprugue  Manuf.  Co.,  11  R.  I.  380. 

2971.  A  receiver  is  not  personally  liable  for  torts  of  his  employees ; 
it   is  only  when   he  commits  the  wrong  himself.     Proceedings  against 
a  receiver  for  torts  are  of  the  nature  of  proceedings  in  rem  and  render  the 
property  held  by  him  as  receiver  liable  in  compensation  for  such  in- 
juries.    Davis  v.  Duncan,  U.  S.  Circuit  Ct.  So  Dist.  Miss.  March,  1884, 
vide,   18  Cent.   Law  Jour.  248;   O'Meara  v.  Halbrook,  20  Ohio  Stater 
137  ;  Kline  v.  Jewett,  11  C.  E.  Greene,  474;  Jordan  v.  Wells,  3  Woods, 
527  ;  Kennedy  v.  R.  R.,  11  Cent.  Law  Jour.  89. 

2972.  A  sale  of  property  under  an  execution  without  leave  of  the 
court,  while  the  property  is  in  the  possession  of  a  receiver,  is  illegal 
and  void,  although  the  levy  was  made  before  the  appointment  of  the  re- 
ceiver.     Walling  v.  Miller,  108  N.  Y.  173. 

2973.  An  equitable  action  by  a  creditor  of  an  insolvent  corpora- 
tion to  reach  assets,  brought  before  the  remedy  at  law  has  been  ex- 
hausted, cannot  be  upheld  on  the  ground  that  the  appointment  of  a  re- 
ceiver  is  necessary  to  preserve  the  property  from  misappropriation 
and  waste  pending  the  litigation.     Adee  v.  Bigler,  81  N.  Y.  349. 


REDEMPTION. 

2974.  Real  estate  sold  at  sheriff's  sale  by  virtue  of  a  decree  of 
foreclosure  of  a  mortgage  thereon,  accompanied  by  a  personal  judg- 
ment against  the  debtor,  may  be  redeemed  by  the  judgment  creditor, 
from  the  purchaser,  where  the  amount  realized  by  such  sale  is  insuf- 
ficient to  satisfy  such  judgment.  2  R.  S.  1876,  p.  220,  §  1 ;  also,  2 
R.  S.  1876,  p.  228,  and  notes  on  pp.  228  to  233.  The  State,  ex  rel.}  etc. 
v.  Sherill,  34  Ind.  57  ;  also,  Davis  v.  Longsdale,  41  Ind.  399  also, 
Greene  v.  Doane,  et  oA,  57  Ind.  186. 


REPLEVIN. 

2975.  No  previous  demand  upon  a  bona  fide  purchaser  of  a  chattel 
from   one  who  had  no  authority  to  sell  it  is  necessar}'  to  enable  the 
owner  to  maintain  replevin.     Such  a  person  is  not  lawfully  in  posses- 
sion as  against  the  owner.     Prime  v.  Cobb,  63  Maine,  200. 

2976.  A   sheriff  who  attempts  to  sell  goods  covered  by  a  writ  of 
replevin   previously  served  upon  himself  or  his  receiptor,  becomes  a 
wrongdoer.     Mayhue  v.  Snell,  37  Mich.  305. 

2977.  Dillmger  consigned  goods  to  Moorehead  for  sale ;  he  pledged 
them  for  a  loan  to  Macky,  who  knew  they  were  owned  by  Dillinger : 
Held,  that  under  the  Factor  Act  of  April  14,  1834,  Dillinger  could  re- 
cover in  replevin  without  tendering  repa3^ment  of  the  loan.     Macky  v. 
Dillinger,  73  Penn.  p.  85.     Moorehead  had  advanced  to  Dillinger  on 


412  MONROE'S  DIGEST 

the  goods  before  pledging  them ;  Dillinger  demanded  them  from 
Macky,  who  declined  to  deliver  without  payment  of  his  loan,  saying 
nothing  as  to  Moorehead's  advance.  Dillinger  might  recover  the  goods 
without  payment  of  the  advance.  Ibid. 

2978.  Macky   gave   a   property   bond   and   retained  the    goods : 
Held,  that  the  amount  due  to  the  advance  be  recouped  from  Dillinger's 
damages.     /  bid. 

2979.  When  a  party  declines  to  accept  payment  or  performance, 
except  in  a  way  to  which  he  is  not  entitled,  he  cannot  insist  that  the 
action  is  prematurely  brought.     Ibid. 

2980.  There  is  no  set-off  in  replevin,  but  if  the  goods  are  subject 
to  a  charge,  it  can  be  inforced  by  way  of  recoupment.    Ibid. 


REPRESENTATIONS. 

2981.  Damages  not  recoverable  for  loss  of  speculative  profits 
where  money  has  been  paid  on  the  strength  of  mistaken  representa- 
tions. Fitzimmons  v.  Chapman,  37  Mich.  139. 


RETROSPECTIVE. 

2982.  Act  145  of  1871  amended  the  statute  of  limitations  so  as  to 
run  against  Canadian  as  well  as  domestic  creditors,  but  allowed  one  year 
from  time  when  the  act  would  take  effect  for  bringing  suit  on  all 
claims  ;  that  it  would  otherwise  bar  action,  because  it  clearly  fixed  the 
date  of  limitation.  Krone  v.  Krone,  37  Mich.  308. 


OF   STANDARD   DECISIONS.  41 3 


SALE. 

2983.  A  "  dealer  "  is  one  who  makes  successive  sales  as  a  busi- 
ness.    A  single  sale  in  gross  of  a  stock  of  liquors,  without  license  as  a 
wholesale   liquor  dealer,  is  not  an  illegal  sale  avoiding  a  note  given 
therefor.     Overall  v.  Bezeau,  37  Mich.  506. 

2984.  The  purchaser  of  a  chattel  takes  it,  as  a  general  rule,  sub- 
ject to  what  may  turn  out  to  be  informalities  in  the  title.     By  a  pur- 
chase in  market  overt  the  title  obtained  is  good  against  all  the  world. 
If  not  so  purchased,  though  purchased  bona  fide,  the  title  obtained  may 
not  be  good  against  the  real  owner.     Where  the  original  owner  has- 
parted  with  the  chattel  to  A.  upon  a  de  facto  contract,  though  there 
may   be  circumstances  which  enable  that  owner  to  set  aside  that  con- 
tract, the  bona  fide  purchaser  from  A.  will  obtain  an  indefeasible  title. 
The  question,  therefore,  in  many  cases  will  be,  was  there  a  contract- 
between  the  original  owner  and  the  intermediate  person.     Gundy  v. 
Lindsay,  Eng.  Law  Reports,  41-42,  Yic.  3  App.  Cases,  459. 

2985.  Sale  under  the  guise  of  a  renting  of  personal    property 
passes  the  title  to  the  property  to  the  vendee.     When  the  transaction 
shows  a  sale  it  does  not  matter  whether  the  parties  intended  the  title 
to  pass  or  not.     The  sale  being  completed  by  an  agreement  as  to  price 
and  terms  of  payment,  and  delivery   of  possession  to  the  vendee,  the 
law,   in  furtherance  of  public  policy  and  to  prevent  frauds,  will  treat 
the  title  as  being  where  the  nature  of  the  transaction  requires  it  should 
be.     Greer  v.  Church  &  Co.,  13  Bush,  Ky.  430. 

2986.  Parties  considering  sale  complete  as  to  price  and  delivery,, 
title  passes  ;  otherwise  not.     Flanders  &  Huguenin  v.  Maynard,  5& 
Ga.  56. 

2987.  While   it   is  true   that   it   is   essential  to  a  sale  that  both 
parties  should  consent  to  it,  yet  the  consent  of  the  former  owner  need 
not  be  expressly  given,  but  may  be  inferred  from  the  circumstances  of 
the  transaction.     Ketchun  v.  Duncan,  96  U.  S.  S.  Ct.  659. 

2988.  A  vendor  of  goods  and  chattels  who  is  induced  by  fraudulent 
means  to  part  with  his  property  under  color  of  a  contract  of  purchase 
may  disaffirm  the  sale  and  reclaim  the  property.     In  such  case  no  title 
passes  to  the  fraudulent  vendee,  even  though  delivery  be  made;  nor 
will  execution  creditors,  or  purchasers,  or  mortgagees  from  the  fraudu- 
lent vendee,  acquire  a  title  superior  to  that  of  the  original  vendor,  un- 
less they  be  purchasers  or  mortgagees  bona  fide  and  for  a  valuable  con- 
sideration.    Williamson  v.  N.  J.  Southern  JR.  E  Co.,  29  N.  J.  Eq.  311. 

2989.  When  property  which  the  owner  has  leased  is  sold  at  sheriff 
sale,  on   execution  against  the  owner,  the  sheriffs  deed  conveys  the 
reversion  and  the  rent  follows  as  an  incident.     Butt  v.  Ellett,  19  Wall. 
U.  S.  544. 

2990.  There  are  some  cases  in  which  a  valid  sale  may  be  made  by 
virtue  of  power  conferred  by  law  on  the  vendor  not  being  the  owner 
of  the  goods  sold.     Thus,  a  sheriff  may  sell  according  to  the  exigency 
of  a  writ  of  execution,  and  if  that  writ  be  afterwards  set  aside,  the 
vendee  does  not  seem  liable  to  return  the  goods,  provided  he  has  acted 
bona  fide.     Manning's  Case,  8  Coke's  Eng.  Repts.   191  ;  Doe  v.  Thorn, 
1  M.  &  S.  Eng.  425 ;  Lock  v.  Sehvood,  1  Ad.  &  E.  Eng.  736. 


411  MONROE'S  DIGEST 

2991.  But  the  vendee  under  an  invalid  distress  warrant  issued 
upon  a  conviction,  has  been  thought  not  to  be  similarly  protected. 
Ibid. 

2992.  Where  a  sale  of  goods  is  made  in  good  faith  with  a  warranty 
of  quality,  the  vendee  is  not  bound  to  rescind  the  contract  on  discovery 
of  a  breach  of  the  warranty,  but  may,  if  he  elect,  use  the  article  and 
rely  upon  the  warranty.     Brigg  v.  Hilton,  99  N.  Y.  517. 

2993.  The  rule  is  the  same  whether  the  goods  are  in  existence  at 
the  time  of  the  contract  of  sale  or  are  to  be  manufactured.     Ibid. 

2994.  The  payee  of  a  promissory  note  gave  to  the  promisor  a 
receipt  acknowledging  it  as  given  for  the  purchase  of  personal  prop- 
erty to  be  delivered  to  the  promisor  on  payment  of  his  note.     The 
note  not  being  paid  at  maturity,  the  payee  notified  the  promisor  that 
he  should  not  recognize  his  further  claim  to  the  property,  and  after  a 
further  lapse  of  time  without  hearing  from  him,  destroyed  the  note. 
Held,  that  the  sale  was  conditional,  not  to  be  completed  until  payment 
of  the  note.     Davison  v.  Davis,  125  U.  S.  90. 

2995.  Judicial  sales  may  be  collaterally  attacked  on  jurisdictional 
grounds.      Williams  v.  St.  Louis,  Iron  Mt.  &  Southern  Ey.  Co.,  8  Mo. 
App.  135. 

2996.  Any  person  intrusted  with,  and  in  possession  of,  any  bill  of 
lading,  Indian  warrant,  dock  warrant,  warehouse  keeper's  certificate, 
•wharfinger's  certificate,  warrant,  or  order  for  delivery  of  goods,  shall 
be  deemed  to  be  the  true  owner  of  the  goods  described  in  the  said 
several  documents,  so  far  as  to  give  validity  to  any  contract  or  agree- 
ment made  by  him  for  the  sale  or  disposition  of  the  goods,  or  any  part 
thereof,  or  the  deposit  or  pledge  thereof,  or  any  part  thereof,  as  a 
security  for  any  money  or  negotiable  instrument  advanced  or  given 
upon  the  faith  of  such  document  if  the  buyer,  disposee,  or  pawnee,  has 
not  notice  by  the  document,  or  otherwise,  that  such  person  is  not  the 
actual  and  bona  fide  owner  of  the  goods.     Close  v.  Holmes,  2  M.  & 
Rob.  Eng.  23. 

2997.  But  if  such  person  deposit  or  pledge  the  goods  as  a  security 
for  a  preexisting  debt  or  demand,  he  who  takes  the  deposit  or  pledge, 

without  notice,  shall  acquire  such  right,  title  or  interest,  and  no  further 
or  other  than  was  possessed  by  the  person  making  the  deposit  or 
pledge.  Bonzi  v.  Stewart,  4  M.  &  Gr.  Eng.  295;  Taylor  v.  Kymer,  3 
B.  &  Ad.  Eng.  337  ;  Taylor  v.  Trueman,  1  M.  &  M.  Eng.  451 ;  Evans  v. 
Trueman,  and  Monk  v.  Whittenbury,  2  B.  &  Ad.  Eng.  484. 

2998.  The  acceptance  by  a  vendee  of  articles  manufactured  for  him 
under  an  executory  contract,  after  an  opportunity  to  examine,  pre- 
cludes him  from  raising  any  objection  as  to  defects  which  were  visible 
and  capable  of  discovery  on  inspection,  unless  there  was  a  warranty  of 
quality  which  was  intended  to  survive  acceptance.     Norton  v.  Drey- 
fuss,  '106  N.  Y.  90. 

2999.  Actual  delivery  of  immovables  in  Louisiana  is  not  essential 
to  validity  of  a  sale  of  them  made  by  public  act  before  a  notary.     Con- 
rad v.  Waples,  96  U.  S.  279. 

3000.  Sale  of  lottery  tickets  held  complete  on  selection  of  tickets 
and  giving  of  security  for  price,  without  delivery.      Thompson  v.  Gray, 
1  Wheat.  75. 

3001.  In  replevin  of  whiskey,  brought  by  A.  against  C.,  there  was 


OF   STANDARD   DECISIONS.  415 

evidence  that  A.  sold  the  goods  in  Cincinnati  to  B.,  who  did  business 
in  Boston  ;  that,  by  the  terms  of  the  agreement,  the  whiskey  was  to  be 
delivered  and  regauged  on  the  cars  at  Cincinnati,  and,  on  receipt  of  an 
invoice  of  the  whiskey,  B.  was  to  send  to  A.  at  New  York  his  promis- 
sory note  for  the  price,  on  three  months'  time,  dated  at  Cincinnati  as 
of  the  date  of  the  delivery  on  the  cars,  and  an  invoice  and  a  form  of  a 
note  dated  at  Cincinnati,  on  ninety  days,  were  sent  to  B. ;  that  B.  did 
not  sign  this  note,  but  pledged  the  goods  to  C.  for  a  valuable  consider- 
ation, failed  in  business,  and  two  days  afterwards  sent  a  note  to  A.  in 
New  York,  dated  at  Boston, and  payable  three  months  after  date;  that 
A.  replevined  the  whiskey  in  Boston  on  the  day  the  note  arrived  in 
New  York,  and  two  days  afterwards  tendered  the  note  to  B.  in  Boston, 
who  refused  to  receive  it.  Held,  that  the  evidence  would  warrant  the 
jury  in  finding  that  the  sale  was  upon  a  condition  which  was  broken, 
and  that  there  had  been  no  waiver  of  the  condition  ;  and  that,  if  so,  B. 
acquired  no  title  to  the  goods  which  he  could  transfer  to  C.  Armour  v. 
Pecker,  123  Mass.  143. 

3002.  Possession  of  personal  property  is  not  title.     It  is  prima 
facie  evidence  of  title,  but  nothing  more,  and  will  not  protect  one  who 
buys  on  the  faith  of  it  against  the  holder  of  the  title.     Kqtchum  v. 
Cummings,  53  Miss.  596. 

3003.  A  sale  of  goods  in  the  hands  of  a  bailee  is  good  against  an 
•execution  creditor,  if  the  vendor  do  not  retake  possession.      Woman  v. 
Kramer,  73  Penn.  378. 

3004.  Faust's  property  was  about  to  be  sold  by  the  sheriff;  an 
attorney  by  arrangement  with  Faust  and  a  judgment-creditor  agreed 
to  buy  it  for  Faust ;  under  this  it  was  struck  down  to  the  attorney ;  it 
was  afterwards  agreed  that  Haas,  another  judgment-creditor,  whom  the 
proceeds  would  reach,  should  pay  the  purchase-money  to  the  sheriff, 
take  the  deed  and  give  Faust  a  time  named  to  repay  him.     Under  this 
arrangement  the  deed  was  made  to  Haas  under  the  direction  of  the  pur- 
chaser ;  Haas  claimed  to  hold  the  property  :  Held,  that  he  was  trustee 
ex  malejicio  for  Faust.     Where  artifice  or  trick  are  resorted  to  to  pro- 
cure property  at  sheriff's  sale  at  an  under  value,  the  purchaser  takes 
as  trustee  for  person  misled.     Faust  v.  Haas,  73  Penn.  St.  295. 

3005.  A  sale  of  goods  which  is  not  accompanied  by  immediate 
•delivery,  and  followed  by  actual  and  continued  change  of  possession, 
as  required  by  section  14  of  Statute  of  Frauds,  R.  S.  339,  is  void  as 
against  the  creditors  of  the  vendor.     Me  Craw  v.  Welch,  2  Colorado,  284. 

3006.  Where  a  sale  has  been  so  far  completed  that  the  vendee  has 
bought  and  received  the  goods,  the  vendor  cannot  hold  him  to  terms 
not  agreed  on,  by  sending  him  a  bill  or  memorandum  of  sale,  with  such 
terms  set  out  upon  it  as  that  "  no  claims  for  deficiencies  or  imperfec- 
tions will  be  allowed,  unless  notice  thereof  is  given  within  seven  days 
from  the  day  in  which  the  goods  were  received."    Schuchardt  v.  Stanley, 
1  Wall.  U.  S. 

3007.  Where  a  creditor,  who  has  bought  certain  movables  from 
his  debtor,  by  crediting  the  latter  on  his  account  with  the  price  of  the 
movables,  instantly  resells  the  property  to  the  debtor,  the  sale  will  be 
valid,  as  between  them,  whether  any  deliver}'  was  made  to  the  creditor 
or  not.     Edward  J.  Gay  &  Co,  v.  Crichlow  &  Donelson,  et  al.,  29  La. 
122. 


416  MONROE'S  DIGEST 

3008.  The  vendor  of  an  article  sold  for  a  particular  purpose  does 
not  impliedly  warrant  it  against  latent  defects  to  him  unknown,  and 
caused  by  the  unskillfulness  or  negligence  of  the  manufacturer  or 
previous  owner,  except  where  the  sale  is  in  itself  equivalent  to  an  affir- 
mation that  the  article  has  certain  inherent  qualities  inconsistent  with 
the  alleged  defects.     Bragg  v.  Merrill,  49  Rowell,  Vt.  p.  45. 

3009.  On  a  sale  of  personal  property  by  a  debtor,  there  must  be 
a  real,  permanent  delivery  and  change  of  possession,  to  enable  the  pur- 
chaser to  hold  the  same  against  an  officer  levying  an  execution  upon  it- 
for  the  debt  of  the  vendor.     Allen  v.  Carr,  85  111.  388. 

3010.  A  sale  and  delivery  of  goods,  on  condition  that  the  property 
is  not  to  vest  until  the  purchase  money  is  paid  or  secured,  does  not  pas* 
the  title  to  the  vendee  until  the  condition  is  performed.     Aultman  v. 
Mallory,  5  Neb.  178. 

3011.  Representations  by  the  vendor,  of  the  quality  of  the  thing 
sold  or  of  its  fitness  for  a  particular  purpose,  intended  as  a  part  of  the 
contract  of  sale  and  relied  upon  by  the  vendee,  constitute  a  contract 
of  warranty.     And  when  there  is  such  contract,  the  vendee  has  a  right 
of  action,  by  proving  the  contract  and  its  breaches,  and  is  under  no- 
obligation  to  return  the  property  or  to  give  notice  of  its  defects;  his 
retention  and  use  of  it,  and  neglect  to  give  notice  of  its  defects,  being 
matei'ial  only  upon  the  question  of  damages.     The  court  charged  that 
if  plaintiff  kept  it  longer  than  was  reasonably  necessary  to.inspect  and 
vest  it  in  the  respect  counted  upon,  without  giving  notice  of  any  defect, 
he  had  impliedly  accepted  it.     Richardson  v.  Grandy,  et  a/.,  49  Rowell, 
Vt.  22. 

3012.  A  pretended  sale  by  an  insolvent  debtor  to  one  of  his  credi- 
tors, will  be  set  aside  on  the  petition  of  any  other  creditor.     Johnson  v. 
Mayer,  30  La.  1 203. 

3013.  Where  several  distinct  articles  are  brought  at  the  same  time 
for  different  prices,  even  if  of  the  same  general  description,  so  that  a 
warranty  of  quality  would  apply  to  each,  the  contract  is  not  entire,, 
but  is  in  effect  a  separate  contract  for  each  article  sold,  and  a  right  of 
rescission  exists  as  to  each  article,  if  the  warranty  in  regard  to  it  is 
broken.     Young  &  Conant  Mfg.  Co.  v.   Waterfield,  121  Mass.  91. 

3014.  A  delivery  of  goods  by  the  seller  to  a  carrier,  pursuant  to- 
the  directions  of  the  buyer,  is  a  good  delivery  to  the  latter.      Wilcox 
Silver  Plate  Go.  v.  Green,  72  N.  Y.  App.  17. 

3015.  One  who  buys  property  with  full  knowledge  that  the  title 
to  the  same  is  in  dispute,  is  not  an  innocent  purchaser,  and  hence  he 
acquires  no  greater  rights  than  his  vendors  had.     Joseph  V.  Ledouxr 
Adm'r  v.  John  G.  Burton,  Mrs.  Ledoux,  Intervenor,  30  La.  576. 

3016.  If  an  animal  has  at  the  time  of  sale  patent  defects  apparent 
upon  casual  inspection  or  any  defect  known  to  the  buyer,  such  defect 
would  not  usually  be  covered  by  a  general  warrant}7.     Hurton  v.  Platot 
3  Colo.  402. 

3017.  Even  when  it  is  shown  that  the  expressed  consideration  of  a 
transfer  does  not  exist,  the  contract  cannot  on  that  account  be  invali- 
dated, if  the  transferee  proves  that  there  was  another  legal,  and  suffi- 
cient consideration.     Brown,  Adm'r  v.  Brown,  30  La.  966. 

3018.  Where   a   party,  knowing   the   pecuniary   condition   of  a- 
debtor,  purchased  a  claim  against  him  of  an  ascertained  amount,  an. 


OP   STANDARD   DECISIONS.  417 

opinion,  however  erroneous,  expressed  by  the  seller  as  to  the  value  of 
the  claim,  does  not  affect  the  validity  of  the  sale.  Under  such  circum- 
stances, each  party  is  presumed  to  rely  upon  his  own  judgment. 
Conn.,  et  al.  v.  Penn.,  5  Wheaton,  424,  U.  S. 

3019.  Seller,  on  discovering  that  the  buyer  is  insolvent,  may  stop 
the  goods  while  in  transit  before  the  buyer  acquires  possession,  even 
when  the  goods  are  attached  by  another  creditor,  if  the  purchase  price 
remains  unpaid.      Walsh  v.  Blakely,  6  Mont.  194  ;  see  Calahan,  et  al.  v. 
Babcock,  et  al.,  21  Ohio  St.  292. 

3020.  When  everything  the  seller  has  to  do  with  the  goods  is 
complete,  the  contract  of  sale  becomes  absolute,  without  actual  pay- 
ment  or  delivery,  and  the  property  and  the  risk  of  accident  to  the 
goods  vest  in  the  buyer.     (Citing :  Williams  v.  Allen,  10  Hump.  337)  ; 
Bush  v.  Bar  field,  41  Tenn.  92. 

3021.  If  by  a  contract  goods  are  to  be  paid  for  at  each  delivery, 
the  refusal  to  pay  for  any  delivery,  without  sufficient  cause,  authorizes 
a  rescission  of  the  contract  on  the  part  of  the  vendor.     Rugg  v.  Moore , 
110  Penn.  236. 

3022.  Where  goods,  sold  to  be  paid  for  in  cash  or  notes  on  deliv- 
ery, are  delivered  to  the  purchaser  without  the  cash  or  notes  being 
given  or  demanded,  the  presumption  is  that  the  condition  has  been 
waived,  and  that  a  complete  title  vests  in  the  purchaser.     Parker  v. 
Baxter,  86  N.  Y.  586. 

3023.  This    presumption,   however,   may   be    rebutted   by   such 
declaration  or  acts  of  the  parties,  connected  with  the  circumstances, 
as  show  an  intention  that  the  delivery  should  not  be  considered  com- 
plete until  performance  of  the  condition.     Parker  v.  Baxter,  86  N.  Y. 
586. 


SATISFACTION  OR  RELEASE. 

3024.  After  the  satisfaction  of  a  judgment  in  favor  of  plaintiff 
it  is  within  the  discretion  of  the  court  to  vacate  it  and  to  amend  the 
complaint  by  adding  new  causes  of  action,  although  by  so  doing  the 
statute  of  limitations  is  avoided.     Hatch  v.  Genii.  Nat.  Bank,  78  N.  Y. 
487. 

3025.  A  release,  even  sealed,  cannot  be  set  up  in  equity  to  defeat 
those  who  were  not  parties  to  it,  and  who  had  separate  interests. 
Oelrich  v.  Spain,  15  Wall.  U.  S.  211. 

3026.  Satisfaction  by  one  joint  tort  feasor  is  a  bar  to  an  action 
against  another,  so  a  partial  satisfaction  by  one  is  proper  to  be  shown 
by  another  in  mitigation  of  damages.     Knapp  v.  Roche,  94  N.  Y.  329. 


SAVINGS   BANK. 

3O27.     A  depositor  in  a  savings  bank,  one  of  whose  bjr-laws  con- 
tained in  his  deposit  book,  provides  that,  u  as  the  officers  of  the  insti- 
tution may  be  unable  to  identify  every  depositor,  the  institution  will 
not  be  responsible  for  any  loss  sustained,  when  a  depositor  has  not 
27 


418  jfcONROES    DIGEST 

given  notice  of  his  book  being  stolen  or  lost,  if  such  book  be  paid  in 
whole  or  part,  on  presentation,"  cannot  maintain  an  action  against  the 
bank  for  an  amount  which,  in  good  faith  and  without  notice  that  the 
book  had  been  stolen,  it  paid  to  a  person  who,  fraudulently  personat- 
ing the  depositor,  presented  the  book  and  obtained  the  amount.  Gold- 
rick  v.  Bristol  County  Savings  Bank,  123  Mass.  320. 

3028.  The  object  and  effect  of  the  act  of  1875  (chap.  371    Laws 
of  1875),  in  relation  to  savings  banks,  was  to  prescribe  a  sole  and  com- 
plete rule  for  their  existence,  and  the  exercise  of  their  powers.     It  ap- 
plies to  corporations  then  existing,  and  whatever  right  of  action  ex- 
isted against  their  trustees  for  penalties  or  forfeitures  under  former 
statutes  was  terminated  by  it.      Van  Dyck  v.  McQuade,  86  N.  Y.  38. 

3029.  Under  the  general  act  regulating  the  dealings  and  opera- 
tions of  savings  banks  (§  27,  chap.  371,  Laws  of  1875),  the  fact  that 
a  savings  bank  secures  an  agreement  to  pay  interest  from  the  bank 
with  which  it  makes  a  deposit  authorized  by  said  act,  does  not  convert 
the  deposit  into  an  unauthorized  loan.     Erie  Co.  Savgs.  Bank  v.  Coit, 
104  N.  Y.  532. 

3030.  The  provision  of  said  act  (§  33),  declaring  the  trustees  of 
savings  banks  who  vote  for  the  declaring  and  crediting  of  any  inter- 
est or  dividend  in  excess  of  the  interest  or  profits  eai'ned,  personally 
liable  to  the  corporation  for  the  amount  of  the  excess,  does  not  limit 
the  interest,  which  may  lawfully  be  voted  for,  to  net  profits.     If  the 
trustee  votes  for  a  dividend  less  than  the  whole  amount  of  interest  or 
profits  earned,  without  any  deduction  therefrom  for  expenses,  although 
the  earnings  have  not  been  actually  received,  he  does  not,  in  the  ab- 
sence of  fraud  or  bad  faith,  overstep  his  statutory  duty,  and  is  not 
liable  to  the  penalty.      Van  Dyck  v.  McQuade,  86  N.  Y.  38. 

3031.  Whenever  a  dividend  is  declared  and  credited  to  a  depositor 
it   becomes  his  property,  to  which  he  is  entitled  in  preference  to  the 
creditors  of  the  corporation.      Van  Dyck  v.  McQuade,  86  N.  Y.  38. 

3032.  It  seems  that  a  trustee,  in  an  action  against  him  to  recover 
the  penalty,  cannot  avoid  liability  because  the  manner  of  voting,  and 
of  recording  the  vote  prescribed  by  the  statute  was  not  followed  ;  he 
can  waive  the  direction,  as  it  was  made  for  his  benefit,  but  cannot  take 
advantage  of  the  omission.     Van  Dyck  v.  McQuade,  86  N.  Y.  38. 

3033.  The  Y.  Savings  Bank,  of  which  defendant  was  a  trustee,  in 
pursuance  of  the  requirements  of  its  charter  (§  6,  chap.  338,  Laws  of 
1869),  at  the  opening  of  its  bank,  posted  notices  of  the  rate  of  interest 
to  be  paid  by  it  upon  deposits ;  and  thereafter  paid  interest  at  the  rate 
stated  up  to  January,  1877.     In  an  action  brought  by  plaintiff,  who 
was  appointed  receiver  of  said  bank,  in  July,  1877,  to  recover  the  in- 
terest so  paid,  the  referee  found  that  the  interest  received  from  invest- 
ments of  the  funds  of  depositors  exceeded  the  interest  paid  them,  but 
that  its  expenses  exceeded  its  earnings  and  income.     No  fraud  or  other 
misconduct,  or  want  of  ordinary  care  and  skill  was  imputed  to  defend- 
ant.    Held,  that  defendant  was  not  liable ;  that  the  order  of  payment 
of  the  debts  of  the  bank,  and  what  portion  of  its  profits  the  trustees 
might  from  time  to  time  divide,  related  to  its  general  business,  which 
was  left  to  the  judgment  of  the  trustees  (§§  4,  7),  and  as  long  as  it  was 
exercised  in  good  faith  in  the  due  course  of  management,  no  common- 
law  liability  was  incurred ;  nor  was  there  any  injury  to  the  corpora- 


OF   STANDAKD  DECISIONS.  419 

tion,  so  that  in  the  light  of  the  common  law  there  was  no  rule  by 
which  damages  could  be  assessed ;  that  no  liability  was  imposed  under 
the  chapter  of  the  revised  charter  in  reference  to  moneyed  corpora- 
tions (1  R.  S.,  chap.  18),  to  which  by  said  charter  the  bank  was  made 
subject  "  so  far  as  applicable,"  as  the  prohibition  in  said  chapter  against 
paying  dividends  to  stockholders  save  from  "  surplus  profits  "  has  no 
application,  the  interest  payable  to  depositors  of  savings  banks  not 
being  dividends  within  the  meaning  of  the  statute,  and  as  said  statute 
prescribes  the  remedy  for  it's  violation  ;  that  if  said  chapter  of  the  Re- 
vised Statutes  ever  had  anjp  force  as  applicable  to  savings  banks  it  be- 
•came  inoperative  after  the  passage  of  the  said  act  of  1875  :  also,  that 
no  liability  attached  under  the  provision  of  the  act  last  mentioned 
(§  33),  declaring  the  trustees  of  a  Savings  bank,  who  vote  for  a  divi- 
dend in  excess  of  the  interest  or  profits  earned,  liable  to  the  corpora- 
tion for  the  amount  of  the  excess,  as  the  interest  paid  was  not  in  excess 
•of  that  earned.  Van  Dyck  v.  McQuade,  86  N.  Y.  38. 

3034.  Assessments  were  made   and  paid  into  the  bank   by  the 
trustees,  under  a  resolution  adopted  by  the  board  to  the  effect  that  such 
assessments  should  be  considered  as  loans  on  interest  "  not  to  be  re- 
turned to  the  payer  until  the  expiration  of  one  year,  unless  otherwise 
ordered  by  the  board  and  the  profits  of  the  bank  warrant  it."     Held, 
that  under  the  resolution  the  money  advanced  became  payable  abso- 
lutely at  the  end  of  the  year,  and  before  that  time  at  the  option  of  the 
bank,  in  case  the  profits  warranted  it ;  but  that,  as  so  far  as  it  ap- 
peared from  the  pleadings  and  evidence  the  fund  advanced  was  joint, 
and  as  there  was  no  statement  of  an  individual  advance  or  loan  by 
the  defendant,  he  could  not  apply  the  general  fund  in  discharge  of 
anv  individual  liability  on  his  part.      Van  Dyck  v.  McQuade,  86  N. 
Y.  88. 

3035.  Defendant  T.  was  one  of  the  trustees  of  a  savings  bank  ;  to 
make  up  a  deficiency  in  the  assets  of  the  bank,  caused  by  a  loss  upon 
ii  loan  made  by  it,  he  executed  a  mortgage  to  H.,  who  assigned  it  to 
the  bank.     In  an  action  to  foreclose  the  mortgage,  held,  that  T.  in  exe- 
cuting it  did  not  thereby  become  a  surety  or  obligor  for  moneys  loaned 
by  the  bank,  within  the  meaning  of  the  provisions  of  the  act  of  1875, 
in   relation  to  savings  banks  (§  21,  chap.  371,  Laws  of  1875),  which 
prohibits  a  trustee  from  becoming  such  surety  or  obligor ;  and  so,  that 
the  mortgage  was  not  invalid  as  violative  of  that  provision.     Best  v. 

Thiel,  79  N.  Y.  15. 

3036.  The  claim  was  made  that  the  trustees  of  the  bank  were 
personally  liable  for  the  deficiency.     The  superintendent  of  the  bank- 
ing department  informed  them  that  they  were  so  liable,  and  that  this 
liability  would  be  enforced  unless  they  made  up  the  deficiency  ;  and 
upon  his  requirement  the  mortgage  was  executed.     T.  set  up  want  of 
consideration  as  a  defence.     Held,  untenable.     1st.  The  seal  was  pre- 
sumptive  evidence   of  a   consideration,  which    presumption  was   not 
clearly  overcome.     2d.  T.  was  estopped  from  denj'ing  the  legal  valid- 
ity of  the  mortgage  as  it  was  with  his  knowledge  and  assent  reported 
to  the  bank  department  and  represented  to  the  depositors  of  the  bank 
as  a   portion  of  its  assets,  and  upon  the  strength  thereof  and  other 
similar  securities,  the  bank  was  permitted  to  continue  its  business. 
jietst  v.  Thiel,  79  N.  Y.  15. 


420  MONROE'S  DIGEST 

3037.  Commercial  paper  discounted  by,  void ;  but  action  may  oe 
maintained  to  recover  the  money  loaned.     See  Pratt  v.  Short,  79  N.  Y. 
437  ;  Pratt  v.  Eaton,  79  N.  Y.  449. 

3038.  The  bank  itself  and  the  receiver,  as  such,  are  proper  and 
necessary  parties  defendant  to  such  an  action.    Brinkerhoff  v.  Bostwick, 
88  N.  Y.  52. 

3039.  The  M.  &  T.  S.  Institution,  a  savings  bank,  chartered  under 
the   Act,  Chapter  368,  Laws  of  1852,  by  resolution  of  its  board  of 
directors,  authorized  C.,  its  president,  to  sell  one  thousand  seven  hun- 
dred and  fifty  shares  of  stock  held  by  it  as  security  for  a  loan  to  J.  & 
Co.  "  for  the  best  interest  of  the  bank     *     *     *     and  in  such  form  as 
to  protect  the  bank  in  its  claim  against  "  J.  &  Co.     C.  made  sales  of 
all  but  eight  hundred  shares,  which  shares  were  reported  to  the  board 
and  entered  in  its  minutes.     Thereafter  C.  authorized  plaintiff,  who- 
was  a  member  of  the  New  York  Stock  Exchange,  to  sell  five  hundred 
shares  of  the  stock  at  the  said  Exchange,  which  was  the  recognized  market 
for  stock  in  said  city,  at  twenty-five  per  cent.,  and  to  offer  it  daily  until 
sold,  with  privilege  to  the  seller  to  deliver  it  any  time  in  sixty  days. 
Plaintiff,  pursuant  to  this  authority,  sold  at  the  price  limited,  and  im- 
mediately notified  C.,  who,  however,  before  this  had  sold  the  eight  hun- 
dred shares  at  private  sale  without  notifying  plaintiff  or  revoking  his 
authority,  and  C.  declined  to  furnish  the  stock  to  meet  plaintiff's  con- 
tract.    The  stock  was  thereupon  bought  in  under  the  rule  of  the  said 
Stock   Exchange,  and  plaintiff  paid  the  difference  between  the  price 
paid  and  what  he  received.     In  an  action  to  recover  the  sum  so  paidr 
held,  that  the  employment  of  plaintiff  to  sell,  and  the  contract  of  saler 
was  within  the  authority  conferred  upon   C.  by  the  resolution ;  that 
plaintiff's  employment  was  an  employment  by  defendant ;  the  sale  was 
within  its  corporate  powers  ;  and  the  subsequent  sale,  by  which  it  was 
disabled  from  furnishing  the  stock  to  meet  the  sale  made  by  plaintiff 
was  no  defence  to  the  action  ;   also  that,  in  the  absence  of  evidence, 
the  presumption  was  that  C.  complied  with  the  resolution,  and  before 
employing  plaintiff  to  sell  had  by  agreement  with  J.  &  Co.,  or  other- 
wise, protected  the  bank  against  any  claim  on  their  part.     Sistare  v. 
Best.  88  N.  Y.  527. 

3040.  Defendant  by  its  charter  (§  2)  is  prohibited  from  loaning 
money  on  "  notes,  bills  of  exchange,  drafts,  or  any  personal  security. 'r 
It  was  claimed  that  the  loan  to  J.  &  Co.,  on  security  of  the  stock  was 
in  violation  of  the  charter,  and  so  that  the  agreement  with  plaintiff" 
was  void.     Held  untenable  ;  that  the  pledge  of  the  stock  was  at  most 
voidable,    not     void,    and    plaintiff    in     accepting    the    employment 
was  not  bound  to  inquire  as  to  defendant's  title.     Sistare  v.  Best,  88 
N.  Y.  527. 

3041.  The  relation  between  a  savings  bank  and  its  trustees  or 
directors  is  that  of  principal  and  agent,  and  that  between  the  trustees- 
and  depositors  is  similar  to  that  of  trustee  and  cestui  que  trust.     Hun 
v.  Gary,  82  N.  Y.  65. 

3042.  If  such  trustees   transcend  the  limits  placed    upon  their 
power  in  the  charter  of  the  bank  and  cause  damage  to  the  bank  or  its 
depositors,  they  are  liable.     Hun  v.  Gary,  82  N.  Y.  65. 

3043.  They  are  also  bound  to  exercise  care  and  prudence  in  the 
execution  of  their  trust,  in  the  same  degree  that  men  of  common  pru- 


OP   STANDAKD   DECISIONS.  421 

dence  ordinarily  exercise  in  their  own  affairs.     Hun  v.  Gary,  82  N". 
Y.  65. 

3044.  Where  loss  is  occasioned  by  the  failure  of  a  trustee  to  exer- 
cise ordinary  care  and  judgment,  he  cannot  excuse  himself  by  claiming 
that  he  did  not  possess  them;  by  voluntarily  taking  the  position,  he 
•undertakes  that  he  does  possess  and  will  exercise  them,  and  it  is  im- 
material that  the  services  are  rendered  gratuitously.     Hun  v.  Gary, 
32  N.  Y.  65. 

3045.  Defendants  were  trustees  of  the  C.  P.  Savings  Bank,  which 
•was   incorporated  in   1867  ;   up  to  January,  1873,  its  average  deposits 
were  about  $70,000,  and  its  expenses  had  exceeded  its  income.     In 
May  of  that  year,  by  action  of  the  board  of  trustees,  the  bank  pur- 
chased a  lot  at  a  cost  of  $29,250,  $70,000  of  the  purchase  money  being 
paid  in  cash ;  the  bank  covenanting  to  erect  a  building  thereon  to  cost 
mot  less  than  $25,000.     Upon  the  lot  the  bank  erected  a  building  fora 
banking  house,  at  a  cost  of  about  $27,000,  and  gave  a  mortgage  thereon 
for  $30,500.     The  object  of  the  purchase  and  building  was  to  improve 
1ihe  financial  condition  of  the  bank  by  increasing  its  deposits.     The 
bank  failed  in  1875.     The  lot  and  buildings,  and  other  property  which 
produced  less  than  $1,000,  constituted  all  of  its  assets  ;  the  real  estate 
was  swept  away  by  foreclosure  of  the  mortgage.     At  the  time  of  the 
purchase  the  bank  occupied  leased  rooms  ;  its  assets  were  insufficient 
by  several  thousand  dollars  to  pay  its  debts,  which  fact  was  known  to 
the  trustees.     By  the  charter  of  the  bank  (chap.  294,  Laws  of  1868),  it 
had  power  to  purchase  a  lot  for  a  banking  house,  requisite  for  the 
transaction  of  its  business.     In  an  action  brought  by  the  receiver  of 
•the  bank  against  the  trustees,  for  damages  caused  by  alleged  improper 
investment  of  its  funds,  held,  that  the  facts  justified  a  finding  that  the 
case  was  not  one  of  mere  error  or  mistake  of  judgment  on  the  part 
•of   the  trustees,   but   of  improvidence    and    reckless   extravagance; 
.and  that  they  were  properly  held  liable.     Hun  v.  Gary,  82  N.  Y.  65. 

3046.  Also,  held,  that  as  the  only  relief  asked  was  a  money  judg- 
ment, the  action  was  properly   tried  as  an  action  at  law  by  a  jury. 
Hun  v.   Gary,  82  N.  Y.  65.     Also,  held,  that  plaintiff  was  not  re- 
quired  to  join   all   the   trustees   as   defendants.     Hun  v.    Gary,  82 
N.  Y.  65. 

3047.  Two   of  the   defendants,  after  the  commencement   of  the 
action,  filed  petitions  for  their  discharge  in  bankruptcy  and  were  dis- 
charged before  judgment.     Held,  that  such  a  discharge  was  not  a  de- 
fence to  the  action,  as  the  claim,  being  for  unliquidated  damages  oc- 
casioned by  a  tort,  was  not  provable  in  bankruptcy  and  therefore  not 
discharged.     Hun  v.  Gary,  82  N.  Y.  65. 

3048.  S.  deposited  with  defendant,  a  savings  bank,  a  certain  sum 
of  money,  receiving  a   pass  book,  which  stated  that  the  account  was 
•with  her,  u  in  trust  for   Christopher  Boone,"  plaintiffs  intestate.     S. 
received  the  pass  book  and  drew  out  one  j'ear's  interest.     After  her 
death  defendant   paid  the   amount  to  her   administrator,  upon  pro- 
duction of  his  letters  of  administration  and  of  the  pass  book.     In  an 
.action  to  recover  the  deposit,  held,  that,  in  the  absence  of  any  notice 
from  the  beneficiarj',  the  payment  was  good  and  effectual  to  discharge 
the  defendant ;  that  the  deposit  constituted  S.  trustee  and  transferred 
the  title  to  the  fund  from  her  individually  to  her  as  such  trustee  ;  that, 


422  MONROE'S  DIGEST 

upon  the  death  of  S.,  her  rights  as  trustee  to  demand  and  receive  the 
fund  devolved  upon  her  administrator,  and  upon  his  demand  defendant 
was  bound  to  pay  it  over ;  it  had  no  right  to  inquire  into  the  nature  of 
the  trust,  and  owed  no  duty  to  the  beneficiary  until  the  latter  by  no- 
tice, by  forbidding  payment  or  by  demanding  it  himself,  created  such 
right  and  duty.  Boons  v.  Citizens1  Svgs.  Bank,  84  N.  Y.  83. 


SET-OFF. 

3049.  H.,  being  indebted  to  W.  on  a  note  under  seal  for  $109r 
took  from  a  third  party  an  assignment  of  a  note  of  W.  for  $58.83,  with 
the  knowledge  of  W.,  and  with  the  understanding  between  the  parties 
that  it  would  be.  credited  against  the  note  for  $109.     Held,  that  the 
equity  to  such  credit  attached  to  the  note  for  $109,  and  followed  it  into- 
the   hands   of  an   assignee,  though    without   notice.     Hall  v.    Hick- 
man,  2   Del.    318 ;   also,    Oliver,  use   of   Griffith  v.   Lowry,  2  Har- 
ring,  Del.  467. 

3050.  Under    the    Gen.    Statute,    c.    130,   §   3,  a    demand    for 
money  paid  cannot  be  set  off  unless  it  is  a  sum  that  is  liquidated,  or 
one  that  may  be  ascertained  by  calculation.     Taft  v.  Larkin,  123- 
Mass.  598. 

3051.  Debts  are  not  mutual  when  one  is  by  the  defendants  as  prin- 
cipal and  surety,  to  the  plaintiff  as  trustee  for  a  minor,  and  the  other 
is  by  plaintiff  as  an  individual  to  the  defendants  as  partners.     Vasonr 
et  al.  v.  Reall,  Trustee,  58  Ga.  500. 

3052.  The  assignee  of  a  mortgage,  unless  the  mortgagor  has  es- 
topped himself,  holds  it  subject  to  all  the  equities  to  which  it  was  liable 
in  the  hands  of  the  assignor.    The  mortgagor  having  given  a  certificate 
that  he  has  no  defence,  is  estopped  from  setting  up  a  defence  against 
an  assignee. 

3053.  Any  subsequent  assignee  may  avail  himself  of  a  certificate 
of"  no  defence,"  given  to  the  first,  if  he  shows  that  he  or  a  prior  one- 
under  whom  he  claims,  was  an  assignee  for  value  without  notice. 

3054.  Burns,  through  an  agent  of  a  trust  compan}',  borrowed  from 
them  on  a  note  and  assigned  stocks,  etc.,  as  collateral ;  the  agent  bor- 
rowed from  Ashton,  and  afterwards  took  an  assignment  of  Burn's  note 
and  collaterals.     Held,  that  Ashton  took  the  collaterals  subject  to  the 
equities    between    Burns    and   the   company.      Ashton 's   Appeal,   73 
Penn.  153. 

3055.  Whenever   a   demand  is   for   damages,  which   the   law   is 
capable  of  measuring  accurately  b}^  a  pecuniary  standard,  it  is  a  proper 
subject  of  set-off  under  our  statutes.     Sledge  v.  Swift,  Murphy  &  Co.r 
53  Ala.  110. 

3056.  The  right  of  set-off  in  an  action  is  governed  by  the  law  of 
the  place  where  the  action  is  brought.     In  an  action  brought  in  Ohio 
by  the  indorser  against  the  maker  of  a  promissory  note,  payable  to 
order,  executed  in  Kentucky,  and  indorsed  before  due,  the  maker  cannot 
set  off  a  debt  due  to  him  from  the  payee,  notwithstanding  the  Kentucky 
statute,  which  declares  such  notes,  "  assignable  so  as  to  vest  the  right 
of  action  in  the  assignee,"  but  provides  that  such  assignment  shall  not- 


OF  STANDARD   DECISIONS.  423 

"  impair  the  right  to  any  .  .  .  offset  the  defendant  has  or  might 
have  used  "  against  the  payee.  Second  Nat.  Bank  of  Cincinnati  v. 
Hemingray,  31  Ohio,  168. 

3057.  A  set-off  may  be  pleaded  in  an  action  brought  by  a  receiver 
of  an  insolvent  national  bank.     Where  usurious  interest  is  reserved  or 
charged    on  a  note   or  bill  discounted  by  a  national  bank,  the  en- 
tire interest  reserved  or  charged  will,  in  an  action  on  the  note  or 
bill,  be    adjudged  forfeited.      Hade   v.    McVay,   Allison   &    Co.,  31 
Ohio,  231. 

3058.  A  voluntary  assignee  allowed  certain  bank  deposits  to  re- 
main in  the  name  of  the  assignor,  and  without  bringing  suit  for  them, 
after  the  maturity  of  notes  held  by  the  bank  on  which  the  assignor 
was  liable  as  indorser  :    Held,   that  the  bank  could  retain  the  deposits 
in  set-off  against  the  notes,  as  by  Gen.  Stat.  R.  I.  cap.  202,  §-14,  the 
right  of  set-off  is  determined  by  the  state  of  the  claims  at  "  the  time 
of  the  commencement  of  the  action."     Nightingale  v.  Chafee,  11  R.  I. 
609. 

3059.  A  legacy,   presently  payable,  cannot  be  set-off  in  equity 
against   a   debt   of  the   legatee   to   the   estate,  not  yet  due.     Hayes, 
Adm'r  v.  Hayes,  2  Del.  191. 

3060.  In  a  suit  against  a  party  and  his  sureties,  a  debt  or  de- 
mand due  from  the  plaintiff  to  the  principal  defendant  may  be  set-off. 
Himrod,  et  al.  v.  Baugh,  85  111.  435. 

3061.  A  demand  against  one  person  cannot  be  set-off  against  him 
and  his  nominal  partner  in  a  suit  by  them  on  a  note  made  to  the  firm. 
A   set-off  must   be   against   all   the   partners.     Jones  v.  Howard,  53 
Miss.  707. 

3062.  Where  a  surviving  partner   purchases  from  the  adminis- 
trator of  his  deceased  partner  tbe  interest  of  the  latter  in  the  partner- 
ship property,  as  assets  of  the  estate,  he  cannot,  in  a  suit  to  collect 
the  purchase  money,  set  off  a  debt  due  him  from  such  decedent  in  his 
lifetime,  even  if  su<ih  set-off  grew  out  of  a  settlement  of  partnership 
matters.       Welborn  v.  Coon,  57  Ind.  270. 

3063.  Where  an  executor  or  administrator  has  sold,  on  credit, 
property  of  the  estate,  he  may  bring  an  action  in  his  own  name  to  re- 
cover the  debt,  and  in  such  an  action  a  debt  against  the  decedent  may 
not  be  made  the  subject  of  a  counterclaim.     Thompson  v.  Whitmarsh, 
100  N.  Y.  35. 

3064.  A  stockholder  indebted  to  an  insolvent  corporation  for  un- 
paid shares  cannot  set-off  against  this  trust  fund  for  creditors  a  debt 
due  him  by  the  corporation,  the  fund  arising  from  such  unpaid  shares 
must  be  equally  divided  among  all  the  creditors.     Sawyer  v.  Hoag,  17 
Wall.  U.  S.  610. 

3065.  A  cause  of  action  founded  upon  an  implied  contract  may 
be  the  subject  of  a  set-off.      Fanson  v.  Linsley,  20  Kan.  235. 

3066.  A  plea  of  set-off  setting  up  a  promise  good  in  parol,  by 
the  common  law,  need  not  show  a  compliance  with  the  requisites  of  the 
statute  of  frauds.     The  statute  prescribes  a  rule  of  evidence,  and  not 
a  rule  of  pleading.      Lehow  v.  Simonton,  et  al,,  3  Colo.  346. 

3067.  A  surviving  partner,  in  an  action  against  himself  to  re- 
cover a  debt  which  he  individually  incurred,  can  set  off  a  claim  of  the 
firm  against  the  plaintiff.     The  set-off  must  have  been  a  subsisting 


424  MONROE'S  DIGEST 

right  in  the  defendant  at  the  time  the  action  was  commenced.     Johnson 
v.  Kaiser,  40  N.  J.  286. 

3068.  Where,  therefore,  in  an  action  by  a  receiver,  upon  a  de- 
mand due  the  bank,  the  defendant  sought  to  set  off  certain  checks 
drawn  in  his  favor  by  depositors,  which  the  referee  found  were  not  de- 
livered to  the  bank,  and  credited  to  defendant's  account,  until  after 
the  service  of  an  injunction  order  issued  in  the  proceedings  for  the  ap- 
pointment of  the  receiver,  restraining  the  officers  of  the  bank  from 
further  action  or  interference  with  its  assets.     Held,  that  the  retention 
of  the  checks  by  the  receiver  was  not  a  ratification  of  the  act  of  the 
bank  officers  in  receiving  them,  and  that  the  set-off  was  properly  dis- 
allowed.     Van  Dycfc  v.  McQuade,  85  N.  Y.  616. 

3069.  Any  set-off  to  a  promissory  note  which  would  have  been 
good  between  the  original  parties,  may  be  pleaded  against  an  indorsee 
•who  acquires  it  after  maturity.     He  takes  it  subject  to  any  right  of 
set-off  which   the   maker  had  against   any    prior   holder.      Davis  v. 
Neliqh,  7  Neb.  78. 

3070.  Set-off  to  the  maker  of  a  promissory  note,  who  was  princi- 
pal, arising  after  maturity  of  the  note,  does  not  discharge  the  other 
maker  who  was  surety.     Strong  v.   Foster,  LXXXIV.  201  ;  17  C.  B. 
201   (Eng.  Com.  Law). 

3071.  When  a  promissory  note,  pleaded  as  a  set-off,  shows  on  its 
face  that  it  was  given  for  a  consideration  different  from  the  plaintiffs 
claim,  it  carries  with  it  no  presumption  of  a  settlement  of  such  claim. 
Boss  v.  Boswell,  60  Ind.  235. 

3072.  A  claim  arising  from  a  bonus  paid  on  a  usurious  loan,  is 
the  subject  of  a  set-off,  and  will  be  barred,  if  not  presented  as  a  set-off, 
in  a  suit  that  offers  an  opportunity.     Dey  v.  Jackson,  39  N.  J.  Law,  535. 

3073.  In  an  action  arising  upon  contract,  any  other  cause  of 
action  arising  also  upon  contract,  and  existing  at  the  time  of  the  com- 
mencement of  the  action,  is  a  good  counterclaim.     Foulks  v.  Rhodes, 
12  Nevada,  225. 

3074.  A  note  given  by  A.  to  B.,'and  not  yet  due,  cannot,  in 
equity,  be  set  off  against  a  note  given  by  B.  to  A.,  upon  which  A.  has 
brought  an  action  for  the  benefit  of  C.,  to  whom  he  assigned  it,  al- 
though C.  knew  at  the  time  of  the  assignment  that  A.  was  insol- 
vent, and  A.  was  subsequently  declared  a  bankrupt.      Spaulding  v. 
Backus,  122  Mass.  553. 

3075.  A  third  party,  for  whose  benefit  a  simple  contract  has  been 
entered  into  for  a  valuable  consideration,  moving  from  the  promisee, 
and  upon  which  the  third  party  might  maintain  an  action  against  the 
promisor,  such  third  party  may,  when  sued  in  assumpsit  by  the  prom- 
isor, plead  by  way  of  set-off  the  damages   arising  from  the  non-per- 
formance of  the  contract  made  for  his  benefit,  and  if  he  omits  to  aver 
in  his  plea  to  whom  the  promise  was  made,  it  will  be  taken  to  have  been 
made  to  the  party  from  whom  the  consideration  proceeded.     Lehow  v. 
Simonfon,  et  al.,  3  Colo.  346. 

3076.  In  the  exercise  of  its  equitable  jurisdiction  this  court  has 
power  to  order  one  judgment  to  be  set  off  against  another,  where  the 
judgment  prayed  to  be  set  off  may  be  enforced  against  the  person  re- 
covering the  judgment  to  be  satisfied  by  the  set-off.     The  doctrine  is  a 
purely  equitable  one,  and  will  be  administered  in  all  cases  upon  such, 


OP  STANDARD  DECISIONS.  425 

equitable  terms  as  will  promote  substantial  justice.     Brown  ads.  Hen- 
drickson,  39  N.  J.  Law,  239. 

3077.  A  counterclaim  set  up  by  the  defendants  in  an  action  can 
only  be   maintained  when    it   exists   in   favor   of  all   the   defendants 
against  the  plaintiffs,  and  each  and  every  one  of  them.     Where  a  note 
is  on  its  face  joint  or  joint  and  several,  it  is  conceived  that  evidence  to 
show  that  one  maker  is  surety  for  the  other  is  inadmissible  at  law  if 
the  question  arises  between  the  creditor  aud  the  surety  ;  but  evidence 
to  that  effect  has  been  received  where  the  question  arises  between  the 
principal  debtor  and  the  sureties.     As  between  the  makers  of  a  prom- 
issory note  and  the  holders,  all  are  alike  liable,  all  are  principals  ;  but 
AS   between   themselves,  their   rights   depend   upon   other  questions. 

Great  West  Ins.  Co.  v.  Pierce,  1  Wyoming  S.  Ct.  Rps.  45. 

3078.  W.  purchased  of  A.  a  claim  against  B.,  pending  an  action 
by  A.  upon  the  claim.     B.  had  previously  purchased  a  claim  against 
A.,  and  had  given  notice  thereof  to  A.     Suit  was  brought  thereon  by 
B.  in  the  name  of  the  assignor,  in  which  W.  appeared  as  adverse  claim- 
ant of  funds  in  the  hands  of  B.  summoned  as  trustee.     At  the  time  of 
his  purchase  of  the  first  claim  W.  had  no  knowledge  of  the  claim 
against  A.  against  judgment  for  the  plaintiff  in  the  first  action.     B. 
purchased  this  claim  after  action  had  been  brought  by  A.  against  him, 
ao   that   it   could  not  have  been  used  in  set-off  in  that  action,  the 
statute  only  permitting  demands  not  negotiable  to  be  so  used  when  a 
party  has  become  the  equitable  owner  thereof  and  given  notice  to  the 
plaintiff  before  the  commencement  of  his  action.     Gen.  St.  c.  130,  §  5. 
At  the  time  W.  made  his  purchase  he  had  no  knowledge  that  there 
was  any  such  claim  against  A.  as  that  of  F.  and  another.     Ames  v. 
Bates,  119  Mass.  397. 

3079.  In  an  action  against  the  maker,  on  a  promissory  note  made 
payable  to  bearer,  the  defendant  answered,  alleging  that  he  had  exe- 
cuted the  note  in  suit  to  A.,  in  consideration  of  the  assignment  to 
him,  by  A.,  of  several  promissory  notes  executed  to  the  latter  by  B. 
for  the  purchase  money  of  certain  real  estate  conveyed  by  A.  to  B.  by 
warranty  deed ;  and  that  B.  had  been  evicted  from  the  possession  of 
part  of  such  land  by  a  purchaser  of  the  same  at  a  sale  thereof  on  de- 
cree, to  satisfy  a  mortgage  thereon  existing  at  the  time  of  such  con- 
veyance; that  which  eviction  was  a  breach  of  A.'s  warranty,  and  by 
reason   thereof  B.  had   defeated  the  collection  of  a  portion  of  such 
notes  for  purchase  money,  held  by  the  defendant,  prior  to  any  notice 
to  him  that  the  note  in  suit  had  been  transferred  by  A.  to  the  plain- 
tiff.    Held,  that  an  instruction  to  the  jury,  stating  to  them  that  the 
consideration  of  the  note  in  suit  was  different  from  that  alleged,  and 
testified  to,  by  the  defendant  is  erroneous.     Held,  also,  that  the  allega- 
tion of  an  eviction  may  be  established  by  showing  that  the  grantee 
was  either  turned  out  of  possession  by,  or  was  placed  in  such  a  situa- 
tion that  to  avoid  expulsion,  he  yielded  up  possession  to,  or  purchased 
of,  a  stranger  having  a  paramount  title.     Held,  also,  that  if  the  de- 
fendant had  received  from   B.,  on  such  notes  for  purchase  money,  an 
amount  equal  to  the  sum   paid  therefor  by  him  to  A.  with  interest 
thereon,  the  plaintiff  should  recover;  but  that,  there  being  no  evidence 
on  the  point,  an  ambiguous  instruction  in  relation  thereto  was  errone- 
ous.    Black  v.  Duncan,  60  Ind.  522. 


426  MONROE'S  DIGEST 

3080.  Also  held,  that  no  rigbt  of  set-off  arose  under  the  Federal 
Bankrupt  Act.     Hunger  v.  Albany  City  Nat.  Bank,  85  N.  Y.  580. 

3081.  There  is  no  right  of  action  upon  a  certificate  of  deposit  in 
ordinary  form  issued  by  a  hank  until  demand  of  payment.     Munger  v. 
Albany  City  Nat.  Bank,  85  N.  Y.  580. 

3082.  A  receiver  of  an  insolvent  bank  has  no  power  to  allow  a, 
set-off  against  a  debt  owing  to  the  bank,  where  the  demand  sought  to- 
be  set  off  was  assigned  to  the  debtor  for  that  purpose  after  his  appoint- 
ment ;  and  what  the  receiver  cannot  thus  do  directly,  cannot  be  done 
by  way  of  ratification  or  waiver.      Van  Dyck  v.  McQuade,  85  N.  Y. 
616. 

3083.  Planter,  whether  before  or  after  his  crop  is  planted,  obtains 
from  a  banker  an  advance  of  money  with  which  to  make  it,  contracting 
by  parol  to  deliver  at  warehouse  part  of  cotton  crop  of  equal  value,. 
no  price  or  definite  quantity  being  specified,  and  dies  before  any  cotton, 
is  delivered,  sale  is  incomplete  and  his  title  to  whole  crop  remains  un- 
diverted.    Lewis  v.  Laftey,  et  al.,  Adm'rs,  60  Ga.  559. 

3084.  Note  for  fertilizers  contained  stipulation  that  unless  written 
notice  was  given  on  July  1st,  failure  of  consideration  should  not  be 
pleaded  ;   plaintiff  setting   up  such   failure,  without   alleging  written 
notice  stipulated  for,  properly  stricken.     Pritchard  v.   Johnson  &  Cal~ 
houn,  60  Ga.  288. 

3085.  Upon  an  agreement  for  the  sale  of  goods,  and  payment 
therefor  with  a  satisfactory  promissory  note,  the  buyer  selected  the 
merchandise,  had  it  weighed,  marked  with  his  initials,  and  placed  by 
itself  in  the  store  of  the  vendor,  to  be  removed  upon  payment  for  it, 
or  giving  an  acceptable  note  for  the  amount.     The  buj-er  did  not  com- 
ply with  these  terms,  and  the  vendor  refused  to  allow  the  buyer  to- 
take  the  goods  away  until  he  was  paid.     Several  months  thereafter 
the  goods  were  destroyed  by  fire.     Held,  that  there  was  no  such  de- 
livery of  the  goods  as  to  constitute  the  vendor  a  bailee  for  the  pur- 
chaser.    Safford  v.  McDonough,  120  Mass. 

3086.  If  the  vendee  in  a  contract  of  sale  refuses  to  receive  the 
article  sold,  the  vendor  may  sell  it  at  private  sale  ;  and  on  proving 
that  he  thus  sold  it  at  its  full  market  price,  he  may  recover  from  the 
vendee  the  difference  between  that  price  and  the  price  stipulated  in  the 
contract  of  sale.     Succession  of  Dongart,  30  La.  264. 

3087.  A.  executed  to  B.  a  deed  of  his  property  in  trust  (amongst 
other  things),  to  convert  the  same  into  money.     B.,  under  the  assumed 
authority  of  this  deed,  mortgaged  the  property.     Held,  that  the  mort- 
gage was  not  authorized  by  the  trust  for  sale,  and  was  only  valid  to 
the  extent  of  B.'s  beneficial  interest  (if  any)   in  the  premises.     The 
Edinburgh  Life  Ins.  Go.  v.  Allen,  18  Grant's  Chancer}',  Ontario,  425. 

3088.  A  defendant  cannot  resist  payment  of  a  demand  for  the 
price  of  goods  sold  and  delivered  to  him,  on  the  ground  that  the  sale 
was  in  fraud  of  the  creditors  of  the  seller.     Under  our  statute  of 
frauds,  only  preexisting  creditors  have  the  right  to  object  to  a  sale  for 
that  reason.     As  to  them,  such  sale  is  voidable  at  their  election,  but, 
as  to  -all  others,  is  valid  and  obligatory.    Gary,  Hudson  &  Go.  v.  Jacob- 
son,  55  Miss.  204. 

3089.  A  warehouseman  sold  3,500  bushels  of  wheat,  part  of  a 
larger  quantity  which  he  had  in  store,  and  gave  the  purchaser  a  ware- 


OF  STANDARD   DECISIONS.  42T 

houseman's  receipt  under  the  statute,  acknowledging  that  he  had  re- 
ceived from  him  that  quantity  of  wheat,  to  be  delivered  pursuant  to  his 
order,  to  be  indorsed  on  the  receipt.  The  3,500  bushels  were  never 
separated  from  the  other  wheat  of  the  seller.  Held,  by  the  Court  of 
Appeal  (Spragge,  C.  and  Morrison  and  Gwynne  JJ.  dissenting),  that 
the  purchaser  had  an  insurable  interest.  Box  v.  The  Provincial  Ins. 
Co.,  18  Grant,  Ontario,  Chancy.  280. 

3090.  Stipulation  that  fertilizer  is  sold  under  the  inspection  and 
analysis  of  Dr.  Means,  Inspector  at  Savannah,  and  the  Department  of 
Agriculture  at  Atlanta,  does  not  preclude  the  maker  from  setting  up 
warranty  of  equality,  and  urging  failure  of  consideration,  etc.     Austin 
&  Ellis,  Agents  v.  Cox,  et  al,  60  Ga.  520. 

3091.  Goods  were  consigned    to  A.  for  sale,  who  made  advance* 
upon  them  to  the  consignor,  and  afterwards  sold  them  to  B.  under  a 
warranty  that  they  were  of  a  certain  quality.     The  goods  did  not  cor- 
respond with  the  warranty,  and  B.  gave  notice  thereof  to  the  consignor r 
and,  with  his  consent,  rescinded  the  sale,  but  gave  no  notice  to  A. 
Held,  that  A.  could  not  maintain  an  action  against  B.  for  the  price  of 
the  goods.     Robinson  v.  Talbot,  121  Mass.  513. 

3092.  Except  in  a  case  when  there  is  an  express  agreement  in  der- 
ogation of  the  general  rule,  the  sale  of  goods,  produce,  or  merchandise 
by  weight,  tale,  or  measure,  is  not  perfect,  and  the  goods  are  not  at  the 
risk  of  the  buyer,  until  they  have  been  weighed,  counted,  or  measured. 
The  purchaser  of  goods  who  has  paid  their  price,  knowing  them  to  be 
damaged  when  he  paid  for  them,  is  not  thereby  estopped  from  suing 
for  a  diminution  of  price,  and  damages,  when   it  appears  that  there 
was  an  understanding  between  him  and   the  seller,  at  the  moment  of 
payment,  that  his  right  of  reclamation  were  reserved.     A  vendor  who- 
is  ignorant  of  the  vices  of  the  things  sold,  is  liable  only  for  the  differ- 
ence, at  the  time  and  place  of  sale,  between  the  actual  value  of  the 
thing  sold  and  what  it  would  have  been  worth  if  sound,  and  the  ex- 
penses connected  with  the  sale.      William  S.  Peterkin  v.  George  Mar- 
tin, 30  La.  894. 

3093.  The    Court    has  no  authority,  on  the  application   of  the 
sheriff,  made  after  the  return  day  of  the  execution,  to  set  aside  a  sale 
of  personal  property  regularly  and  fairly  made.     A  sale  is  a  contract 
to  pass  rights  of  property  for  money,  which  the  buyers  pay,  or  promise 
to  pay,  to  the  seller  for  the  thing  bought  and  sold ;  and  if  the  sheriff 
gives  possession  of  the  property  sold,  before  obtaining  the  fu ft  pay- 
ment therefor,  and  the  bid  was  settled  by  the  purchaser  in  good  faith r 
which  is  not  denied,  the  right  of  property  passes.     When  the  sheriff, 
on  his  own  authority,  distributes   money   levied  under  several  execu- 
tions before  the  return  day   of  the  writ,  he  does  it  at  his  own  risk. 
His  misapplication  of  the  proceeds  cannot  destroy  the  validity  of  a 
sale  otherwise  good.     Mackaness  v.  Long,  85  Penn.  St.  158. 

3094.  By  the  terms  of  a  sale  of  goods  the  buyer  was  to  send  for 
the  goods  and  take  them  away.     This  case  was  before  the  Court  at  a 
previous  stage,  118  Mass.  143.     The  only  additional  fact  proved  at  the 
second  trial  was,  that  after  the  defendant  was  told  that  the  skins  were 
lying  in  the  doorway,  they  were  pointed  out  to  him,  and  he  passed  out 
of  the  door  where  they  were  lying,  and  said  he  would  send  for  them. 
That   there   was   sufficient   evidence   of  delivery   has   been   conceded 


428  MONROE'S  DIGEST 

throughout  this  controversy  ;  the  question  being  whether,  on  the  facts 
reported,  there  was  evidence  of  acceptance  within  the  statute  of 
frauds.  It  is  enough  to  say  that  the  additional  fact  does  not  neces- 
sarily show  an  acceptance,  and  the  presiding  judge  could  not  properly 
have  ruled  as  requested  by  the  plaintiff;  and,  having  found  for  the  de- 
fendant, he  must  necessarily  have  found  that  there  was  "  not  such  an 
equivocal  act  of  acceptance  as  would  take  the  case  out  of  the  statute." 
As  it  was  part  of  the  contract  that  the  defendant  should  send  for  the 
skins,  the  fact  that  he  said  he  would  do  so,  when  he  left  the  store,  does 
not  add  to  the  effect  of  the  evidence.  Knight  v.  Mann,  120  Mass. 


SIGNATURE. 

3095.  Held,  that  the  genuineness  of  the  signature  to  or  indorse- 
ment of  a  note  ceases  to  be  presumed  the  moment  the  defendant  de- 
nies it  in  his  pleas  supported  by  affidavit,  and  the  plaintiff  mu^t  make 
proof  of  the  same ;  and  that  in  the  present  case  the  plaintiffs  were 
guilty  of  neglect    in  accepting  the  note  without  sufficient   caution. 
Dorwin,  et  aL  v.  Thompson,  3  C.  L.  J.  130,  S.  C.  1867,  Canada. 

3096.  If  a  defendant  by  exception  admits  his  signature  to  a  note 
of  hand,  and  plead  a  term  for  payment,  it  is  not  necessary  for  the 
plaintiff  to  prove  the  signature,  even  though  the  exception  be  dismissed 
:and  there  is  a  defence  en  fait.      Vallieres  v.  Roy,  2  Rev.  de  Leg.  335, 
K.  B.  1820  ;  1223  C.  C.  &  145  C.  C.  P.  Ca. 

3097.  A  dealer  with  a  bank  trusting  to  his  clerk's  report  th'at  his 
bank  book  was  correct,  omitted  to  examine  it,  and  did  not  discover 
that  checks,  forged  in  his  name  by  the  clerk,  had  been  paid  by  the 
bank,  charged  in  the  book,  and  cancelled,  and  returned  with  it,  until 
some  months  after  their  payment :     Held,  that  he  was  not  estopped 
from  denying  the  genuineness  of  the  checks.     Weisser  v.  Denison,  10 
N.  Y.  Ct!  of  App.,  1854  (6  Seld.)  68. 

3098.  Standards  of  comparison,  to  be  used  by  experts  upon  the 
trial  of  an  issue  as  to  the  genuineness  of  a  signature  when  not  a  paper 
already  in  the  case  or  admitted  to  be  genuine,  are  not  admissible  for 
that  purpose,  unless  they  are  clearly  proved  by  witnesses  who  testify 
directly  to  their  having  been  written  by  the  party  whose  signature  is 
in  question. 

3099.  Where   a  receipt  was   offered   as   such   standard   of  com- 
parison, and  a  witness  testified  that  the  defendant  gave  him  a  receipt 
that  looked  very  similar  to  the  one  offered,  but  that  he  could  not 
positively  say  it  was  the  indentical  one  offered  in  evidence  :  Held,  that 
the  evidence  was  too  uncertain  to  warrant  the  admission  of  the  paper 
as  a  standard  of  comparison.     Pavey  v.  Pavey,  30  Ohio,  600. 

3100.  In  an  action  by  the  indorsees  of  a  promissory  note  against 
the  alleged  makers,  in  which  the  defendants  by  their  plea  denied  their 
signature,  Held,  confirming  courts  below,  on  evidence  that  one  of  the 
firm  by   whom  the  note  purported  to  be  signed  had  therein  admitted 
that  the  signature  was  that  of  the  firm,  and  had  been  written  by  him- 
self, that  as  there  was  no  clear  and  legal  proof  of  want  of  genuineness 


OP   STANDARD  DECISIONS.  429 

in  the  signature  the  admission  could  not  be  set  aside  on  mere  presump- 
tion arising  from  knowledge  of  the  maker's  handwriting,  and  also  that 
another  promissory  note  signed  by  the  firm  could  not  be  sued  for  the 
purpose  of  creating  a  standard  of  comparison  of  handwriting,  such 
signature  not  having  been  itself  established  to  be  genuine.  Reid,  el 
al.  v.  Wanner,  17  L.  C.  R.  485,  Q.  B.  1867,  Canada. 

3101.  Where  the  signature  to  a  bill  or  note  is  denied,  experts  may 
be  appointed  on  motion  of  one  of  the  parties,  and   their  report  pro- 
mulgated as  conclusive.     Lord  v.  Laurin,  et  al.,  9  L.  C.  J.  171,  and  15- 
L.  C.  R.  452,  C.  C.  1865,  322  et  seq.  C.  C.  P.  Canada. 

3102.  In  a  power  of  attorney  the  party  executing  it  described 
herself  as  executrix  and  sole  legatee  under  the  will  of  M.;  she  signed 
it  simply  in  her  own  name.     Held,  that  the  description  was  sufficient 
to  show  that  it  was  executed  by  her  as  executrix,  and  the  failure  to- 
add  her  official  character  to  the  signature  did  not  impair  its  effect. 
Myers  v.  Mut.  L.  Ins.  Co.,  99  N.  Y.  1. 


STATED  ACCOUNT. 

3103.  Stated  accounts  were  given  in  an  answer  in  equity,  and  the 
benefit  thereof  claimed  as  if  pleaded.     They  were   supported  by  suf- 
ficient evidence.     Held,  the  burden  of  proof  was  on  the  party  impugn- 
ing the  accuracy  of  the  accounts.     Seamans  v.  Burt,  11  R.  I.  320. 

3104.  What  constitutes,  is  a  matter  of  evidence.     Setting  down  a 
plea  of,   for  argument,   is  equivalent  to  a  demurrer.     Allen  v.  Woon- 
socket  Co.,  11  R.  I.  288. 

3105.  The  fact  that  a  balance  is  shown  in  an  account  and  claimed 
in  a  suit,  does  not  make  it  less  an  open  account.     The  term  "  open  ac- 
count "  is  used  in  contradistinction  to  a  stated  account,  wherein  the  ac- 
count is  closed  by  an  assent  to  its  correctness  by  the  party  charged. 
Whittlesey  v.  Spofford,  47  Texas,  13. 


STATUTE  OF  LIMITATIONS. 

3106.  A  promise  by  M.  that  "  he  would  see  his  brother  and  would 
pay  the  debt,"  sufficient  to  remove  the  bar  of  the  statute  of  limita- 
tions.    A  promise  relied  on  to  avoid  the  statute  of  limitations,  made 
to  an  attorney,  is  in  law  a  promise  made  to  the  principal,  and  can  be 
declared  on  as  such.     Kirby  v.  Mills,  78  N.  C.  124. 

3107.  Residence  and  not  citizenship  is  contemplated  in  the  statute 
prescribing  limitations  upon   the  time  of  bringing  actions,  and  the 
statute  runs  in  favor  of  a  debtor  who  has  his  domicile  in  the  State. 
The  statute  ceases  to  run  when  the  debtor  becomes  a  non-resident,  but 
revives  upon  his  demise.     Savage  v.  Scott,  et  al.,  45  Iowa,  130. 

3108.  Part  payment  of  the  consideration  of  a  parol  promise  not 
to  be  performed  within  the  year,  does  not  withdraw  the  agreement  from 
the  operation  of  the  statute.     Reinheimer  v.  Carter,  31  Ohio,  579. 


430  MONROE'S  DIGEST 

3109.  The  statute  of  limitations  in  force  where  the  remedy  is 
sought,  and  not  that  existing  where  the  contract  was  made,  must 
govern  the  remedy.     Sampson  v.- Sampson,  63  Me.  329. 

3110.  Statute  of  limitations  runs  against  an  infant  having  only 
oolor  of  title  to  the  land.     Soule  v.  Barlow,  49  Rowell,  Vt.  329. 

3111.  Statute  of  limitations  can  apply  to  future  transactions  only, 
unless  they  are  expressly  given  effect  on  previous  transactions,  or  un- 
less some  of  their  terms  cannot  be  met  otherwise.     Perrin  v.  Kellogg, 
36  Mich.  316. 

3112.  A  credit  upon  an  account  after  the  cause  of  action  on  the 
«ame  is  barred  by  the  statute  of  limitations,  will  not  be  treated  as  part 
payment  thereof,  unless  shown  to  have  been  so  intended  by  the  parties. 
Kaufman  v.  Broughton,  31  Ohio,  424. 

3113.  Where  the  statute  of  limitations  has  begun  to  run  during 
the  life  of  the  devisor,  no  disability  in  the  devisee  will  arrest  it.     Boze- 
man,  et  al.  v.  Browning,  et  al.,  31  Ark.  364. 

3114.  Under  the  Gen.   Sts.  c.   155,  §  14,  a  payment  of  interest 
•on  a  promissory  note  by  the  principal  does  not  take  the  debt  out  of 
the  statute  of  limitations  as  against  a  surety.     Faulkner  v.  Bailey,  123 
Mass.  588. 

3115.  Part  payment  upon  a  bond  made  by  the  administrator  of 
one  of  the  joint  makers  within  the  statutory  period  will  prevent  the 
running  of  the  statute  of  limitations  in  favor  of  the  remainder.      The 
County  of  Vernon  to  use  of  School  Fund  v.  Stewart,  64  Mo.  408. 

3116.  Statute  of  limitations  begins  to  run  on  an  administrator's 
bond  from  the  expiration  of  four  and  a  half  years  after  issuing  letters 
of  administration.     Biddle  v.   Wendell,  37  Mich.  452. 

3117.  Plaintiff,  in  order  to  remove  the  bar  of  the  statute  of  limita- 
tions, having  shown  that  defendants   were  non-residents  of  the  State 
wherein  the  cause  of  action  accrued,  it  was  held,  that  the  burden  was 
•on  defendants  to  show  that  thej'  had  owned  attachable  property  within 
the  State.     Rixford  v.  Miller,  et  al.,  49  Rowell,  Vt.  319. 

3118.  If  money  is  loaned,  to  be  repaid  on  demand,  and  no  note  or 
obligation  is  given  in  writing  to  repay  it,  the  statute  of  limitations 
commences  running  from  the  time  of  the  loan.     When  the  statute  of 
limitations  holds,  the  debt  cannot  be  revived,  except  by  a  promise  in 
writing  signed  by  the  debtor.     Estate  of  Galvin,  51  Cal.  215. 

3119.  A  payment  by  one  of  several  makers  of  a  joint  and  several 
promissory  note,  were  in  fact  partners  when  they  signed  the  note,  will 
take  it  out  of  the  statute  of  limitations  as  to  the  others,  if  the  note  be 
a  partnership  debt,  and  the  payment  made  out  of  partnership  funds. 
Mix  v.  Shattuck,  et  al.,  50  Vt.  421. 

3120.  Payments  made  by  the  treasurer  of  a  partnership  from  part- 
nership funds,  and  by  him   indorsed  on  a   partnership  note,  take  the 
note  out  of  the  statute  of  limitations,  in  the  absence  of  any  showing 
that  he  acted  without  authority  and  without  duty.      Walker  v.  Wait, 
et  al.,  50  Vt.  668. 

3121.  A  partial  payment  of  a  debt,  replied  to  the  statute  of  limita- 
tions, raises  only  a  prima  facie  presumption  that  such  payment  is  an 
admission  of  continued  indebtedness.     Strong  v.  The  State,  ex  rel,etc.j 
57  Ind.  428. 

3122.  In  an  action  on  account  for  money  loaned,  where  the  six 


OF  STANDARD   DECISIONS.  431 

years'  statute  of  limitation  is  pleaded,  a  reply  that  such  money  is  part 
of  a  mutual  running  account,  remaining  unsettled,  and  extending  up 
to  the  time  of  bringing  the  action,  is  sufficient  on  demurrer.  Harper 
v.  Harper,  57  Ind.  547. 

3123.  Since  the  passage  of  the  Married  Woman's  Act  of  1861,  the 
statute  of  limitations  runs  against  a  married  woman   the   same   as 
against  a  feme  sole.     The  expression  in  Morrison  v.  Norman,  47  111. 
477,  and  Noble  v.  McFarland,  51  111.  226,  to  the  effect  that  the  Married 
Woman's  Act  of  1861  has  no  effect  upon  the  saving  clause  in  the  limi- 
tation laws,  is  overruled.     Cortner,  et  al.  v.  Walrod,  83  111.  171. 

3124.  The  payment  by  the  principal,  year  by  }rear,  of  the  interest 
on  a  joint  and  several   promissory  note,  will  prevent  the  statute  of 
limitations  from  attaching  to  the  note  in  favor  of  the  surety.     The 
rule  on  this  subject,  laid  down  in  Ellicott  v.  Nicols,  1  Gill,  86,  has  been 
the  accepted  law  of  this.  State  for  nearly  thirty  years,  and  in  the 
absence   of  legislation   to  the  contrary,  it   is  not  to  be  questioned. 
Schindel  v.  Gates,  46  Md.  604. 

3125.  An  acknowledgment  of  a  debt,  made  not  to  the  creditor,  but 
to  a  stranger,  does  not  avoid  the  running  of  the  statute  of  limitations. 
Schmucker  v.  Sibert,  18  Kansas,  104. 

3126.  The  presumption  that  a  bond  has  been  paid  which  arises 
after  a  lapse  of  twenty  3rears,  has  not  been  changed  or  abolished  by 
the  passage  of  the  act  of  limitation  to  suits  on  bonds.     Such  presump- 
tion is  not  a  legal  bar  ;  it  is  a  presumption  of  fact  which  must  be  held 
to  be  conclusive,  unless  rebutted   by   evidence  showing  satisfactorily 
that  the  bond  has  not  been  paid,  or  furnish  good  and  sufficient  reasons 
why  longer  forbearance  has  been  given.     Hale,  et  al.  v.  Park's  ex'r, 
10  West  Va.  145. 

3127.  A  promise  by  a  member  of  a  late  partnership,  made  after 
dissolution  and  before  a  suit  is  barred  by  the  statute  of  limitations,  to 
pay  a  partnership  debt,  will  not  prevent  the  running  of  the  statute  so 
as  to  estop  the  other  partner  from  availing  himself  of  the  defence  of 
the  statute  as  against  the  original  cause  of  action  ;  and  this  whether 
the  creditor  was  aware  of  the  dissolution  or  not.     Tate  v.  Clements,  16 
Florida,  339. 

3128.  In  order  to  obtain  the  benefit  of  the  statute  of  limitations, 
a  defendant  must  insist  on  it  as  a  bar  to  his  answer.     If,  instead  of  so 
doing,  he  simply  denies  the  allegations  of  the  petition,  he  cannot,  upon 
the  trial,  also  insist  upon  the  bar  of  the  statute.      Townsley  v.  Moore, 
30  Ohio,  184. 

3129.  A  debt  was  due  October  6th,  1862;  suit  was  brought  Octo- 
ber 6th,  1868.     Held,  not  barred  by  the  statute.     When  suit  is  brought 
within  six  years  after  the  da}7  on  which  the  cause  of  action  arose,  that 
day  is  to  be  excluded  from  the  computation.     Menges  v.  Foick,  73 
Pe'nn.  St.  137. 

3130.  The  receipt  for  nine  hundred  dollars,  borrowed,  to  be  re- 
turned u  when  called  for,"  created  a  cause  of  action  from  its  date,  and 
against  it  the  statute  ran  from  the  time  of  its  execution.     The  mere 
removal  of  a  debtor,  without  communicating  to  his  creditor  the  place 
of  his  new  domicile,  does  not  constitute  such  a  fraud  as  will  stop  the 
running  of  the  statute.     Eborn  v.  Zimpelman,  47  Texas,  503. 

3131.  The  act  of  1868,  ch.  357,  provides,  that  "  In  actions  here- 


S3 2  MONROE'S  DIGEST 

after  brought,  where  a  party  has  a  cause  of  action  of  which  he  has 
been  kept  in  ignorance  by  the  fraud  of  the  adverse  party,  the  right  to 
bring  the  suit  shall  be  deemed  to  have  first  accrued  at  the  time  at 
which  such  fraud  shall,  or  with  usual  and  ordinary  diligence  might 
have  been  known  and  discovered."  Held,  1st.  That  it  was  not  thereby 
meant  that  in  all  cases  a  party  must  commit  a  fraud  distinct  from,  and 
independent  of  the  original  fraud,  for  the  purpose  of  keeping  the  in- 
jured party  in  ignorance  of  his  cause  of  action,  nor  that  the  mere  con- 
cealment of  the  fraud  is  insufficient.  2d.  That  where  one  practices 
fraud  to  the  injury  of  another,  the  subsequent  concealment  of  it  from 
the  injured  party  is  in  itself  a  fraud,  and  if  he  is  therebj'  kept  in 
ignorance  of  his  cause  of  action,  he  is  kept  in  ignorance  by  "  the  fraud 
of  the  adverse  party."  Wear  v.  Skinner,  46  Md.  257. 

3132.  To  remove  the  bar  of  the  statute  of  limitation,  plaintiff  in- 
troduced a   letter  from  defendant,  in  which  defendant  "  in  regard  to 
settlement,  that  he  was  ready  any  day  after  that  week,  and  willing  to 
leave  it  out  to  be  settled,  but  that  he  thought  it  would  be  better  to 
settle  it  themselves,  if  they  could,"  and  that  he  did  not  see  where  plain- 
tiff got  his  statement  of  what  had  been  put  upon  the  farm ;  and  asked 
when  plaintiff  would  "  look  the  business  over."     Held,  that  the  letter 
was  an  admission  of  the  existence  of  an  unsettled  account,  and  an  ex- 
pression of  willingness  to  settle  it,  unaccompanied  by  an  expression  of 
unwillingness  to  pay  the  balance  that  might  be  found  due,  and  that  it 
took  plaintiff's  claim  out  of  the  statute.     Bliss  v.  Allard,  49  Rowell, 
Vt.  350. 

3133.  The  lapse  of  time  provided  by  a  statute  of  limitations  as  to 
real  actions,  vests  a  perfect  title  in  the  holder.     Bicknell  v.  Comstock, 
113  U.  S.  149. 

3134.  Reduction  from  20  to   15  years  applies  to  causes  of  action 
accruing  after  passage  of  the  act.     1  Bush.  145.     As  to  non-residents. 
Selden  v.  Preston,  Bush. 

3135.  Not  suspended  by  death.      Wenman  v.  Ins.  Co.,  13  Wend. 
263  ;   Quincy  v.  Hall,  19  Gal.  77  ;   Christophers  v.  Garr,  2  Selden,  62. 

3136.  Acknowledgment  of  debt,  barred  by  statute  of  limitation  re- 
news the  debt.     Lawson  v.  McCartney,  XVII.  Reporter,  694  ;  Bell  v. 
Morrison,  1  Peters,  351. 

3137.  One  partner  cannot  deprive  the  firm  of  the  bar  of  the  statute 
of  limitations  after  a  dissolution  of  the  partnership.     Bell  v.  Morrison, 
1  Peters,  351. 

3138.  The  insolvency  of  a  bank  having  occurred  prior  to  June  lr 
1865,  an  action  against  a  stockholder,  under  the  individual  liability 
clause   of  its   charter,  not   commenced    Jan.    1,   1870,  is   barred   by 
the  statute  of  limitations  of  the  State  of  Georgia,  of  March  16,  1869. 
Terry  v.  Tubman,  92  U.  S.  156. 

3139.  The  Exchange  Bank  of  Columbia,  S.  C.,  failed  in  February, 
1865.     In  June,  1872,  its  creditors  filed  a  bill  in  equity  to  enforce  their 
claims  against  the  stockholders  under  a  clause  of  the  charter,  which, 
"  upon  the  failure  of  the  bank  "  rendered  them  individually  liable  for 
any  sum  not  exceeding  double  the  value  of  their  respective  shares. 
The  defence  set  up  the  Statute  of  Limitations  of  1712,  which  requires 
actions  upon  the  case,  and  actions  of  debt,  grounded  upon  a  contract, 
without  specialty,  to  be  brought  within  four  years.     Held,  that  as  the 


OP  STANDARD   DECISIONS.  433 

liability  of  the  stockholders  arose  from  their  acceptance  of  the  act 
creating  the  corporation,  and  their  implied  promise  t'o  fulfil  its  re- 
quirements, the  proper  remedy  was  an  action  upon  the  case  ;  and  that, 
as  the  statute  barred  such  an  action  at  law,  it  was  also  a  good  defence 
in  equity.  Carrol,  et  al.  v.  Green,  et  al.,  92  U.  S.  509. 

3140.  Barring  suits  for  the  recovery  of  real  estate  after  a  certain 
lapse  of  time,  does  not  apply  to  the  case  of  a  suit  brought  by  a  vendor 
of  land  having  a  vendor's  lien,  and  who  has  never  made  a  deed  but 
only  agreed  to  make  one  against  a  purchaser  from  the  original  vendee. 
Both  the  original  vendee  and  the  purchaser  from  the  original  vendee. 
Both  the  original  vendee  and  the  purchaser  from  him,  stands  in  the 
relation  of  a  trustee  to  the  vendor  for  the  unpaid  purchase  money  (or, 
as  the  matter  is  looked  upon  in  some  States,  stands  in  that  of  a  mort- 
gagee), against  whom  the  statute  does  not  run.     Lewis  v.  Hawkins, 
23  Wall.  U.  S.  120. 

3141.  The  parties  to  a  contract  may  provide  by  express  stipula- 
tion for  a  shorter  limitation  to  actions  thereon  than  that  fixed  by  the 
general  law.     Wilkinson  v.  Nat.  F.  Ins.  Co.,  72  N.  Y.  App.  499. 

3142.  Letters  written  by  a  partner  recognizing  the  existence  of  a 
judgment  against  the  firm,  after  it  is  barred  by  the  statute  of  limita- 
tions, will  not  revive  the  judgment  against  him,  when  he  was  not 
originally   liable   by   reason   of   the   dissolution   of   the   firm   before 
the  judgment  was  rendered.     Harford,   Thayer  &    Co.  v.  Street,  46 
Iowa,  594. 

3143.  Where  the  party  against  whom  a  cause  of  action  exists,  by 
fraud  or  actual  fraudulent  concealment  prevents  the  party  in  whose 
favor  it  exists  from  obtaining  knowledge  of  it,  the  statute  only  com- 
mences to  run  from  the  time  the  right  of  action  is  discovered,  or  might 
by  the  use  of  diligence  have  been  discovered.     Findley,  et  al.  v.  Stewart, 
et.  al.,  46  Iowa,  655. 

3144.  Fraud  which  must  have  been  discovered  if  reasonable  dili- 
gence had  been  exercised,  not  a  good  reply  to  the  statute  of  limitation. 
Button  v.  Dye,  60  Ga.  449.     A  motion  to  set  aside  a  judgment  is  barred 
after  the  lapse  of  seven  years  from  its  rendition.     Cauthorn  v.  Hark- 
ness,  60  Ga.  299. 

3145.  The  following  writing,  addressed  to  the  plaintiffs  and  signed 
by  the  defendant,  was  offered  as  evidence  of  an  acknowledgment  of  the 
debt  sued  on,  to  take  the  case  out  of  the  operation  of  the  statute  of 
limitations  :    "  It  will  suit  my  convenience  to  execute  my  note  for  the 
balance  due  for  rent,  payable  January  1,  1877."     The  court  rejected  it. 
Held,  that  the  court  below  properly  rejected  the  writing,  as  it  is  too 
vague  and  indefinite  to  prove  such  acknowledgment.      Trustees,  etc. 
v.  Gilmer,  55  Miss.  148. 

3146.  If,  at  the  time  when  a  right  of  action  accrues,  there  is  no 
one  in  being  to  assert  it,  the  statute  of  limitations  will  not  commence 
to  run  until  there  is  some  one  who  has  power  to  sue.     Metcalfv.  Grover, 
55  Miss.  145. 

3147.  Where  a  demand  is  necessary  to  found  an  action  upon,  the 
demand  is  barred  unless  made  within  the  period  of  the  statute  of  limi- 
tations, and  the  right  of  action  is  extinguished  by  the  delay.     Palmer 
v.  Palmer,  36  Mich.  487. 

3148.  Upon  all  demand  paper  not  excepted  by  Statute  Comp.  L. 
28 


434  MONROES    DIGEST 

1871,  (§  7151),  from  the  provisions  of  the  statute  of  limitations,  the 
time  runs  from  the  beginning,  without  any  special  demand,  and  no  one 
can  become  a  bona  fide  purchaser  who  does  not  take  it  within  some 
reasonably  short  period  ;  to  hold  otherwise  would  enable  banks  to  issue 
certificates  of  deposit,  of  any  denomination,  for  circulation  as  ordinary 
bank  bills,  and  with  like  effect.  Tripp  v.  Curtenius,  36  Mich.  494. 

3149.  It  is  questioned  whether  an  administrator  of  the  estate  of  a 
deceased  person  can  by  any  acknowledgment,  in  writing  or  otherwise, 
suspend  the  running  of  the  statute  of  limitations  against  the  debt  of 
his  intestate.     Nor  can  an  administrator,  by  making  payments  on  a 
demand  of  over  $50,  suspend  the  running  of  the  statute  of  limitations 
against  such  demand.     Clawson  v.  McCune's  Adm'r,  20  Kansas,  337. 

3150.  An   indorsement,  in   the   handwriting   of  the   debtor,  but 
not  signed  by  him,  of  a  payment  of  part  of  a  promissory  note,  will  not 
prevent  the  operation  of  the  statute  of  limitations,  if  no  money  or 
valuable  consideration  actually  passes  between  the  parties,  even  if  the 
parties,  at  the  time  of  the  indorsement,  orally  agree  that  it  shall  be 
deemed  to  be  a  payment.     Blanchard  v.  Blanchard,  122  Mass.  558. 

3151.  The  failure  of  an  administrator  to  sue  on,  or  collect,  a  note 
due  his  intestate  until  it  has  become  barred  by  the  statute  of  limita- 
tions, does  not  affect  the  infant  distributees  of  the  estate,  but  they  may 
bring    suit   on   such   note,  within   the   time   limited  by  the  statute 
after  they  become  of  legal  age.     Pittman  v.  McClellan,  55  Miss.  299. 

3152.  Action  for  recovery  of  one-half  of  money  expended  in  pur- 
chasing material  to  build  house  in  joint  occupancy  of  two  persons, 
should    be    brought   as   soon    as    money    is    expended,   and    if  not 
brought  within  four  years  thereafter,  is  barred.     Guill  v.  Guill,  60 
Ga.  446. 

3153.  A  statute  of  limitations  of  the  loci,  contractus   cannot  be 
pleaded  in  bar  in  a  foreign  jurisdiction,  where  both  parties  were  resi- 
dent in  the  loci  contractus  during  the  whole  statutory  time,  so  as  to 
make  the  bar  complete  there,  unless  such  statute  go  to  the  extinction 
of  the  right  itself,  and  not  to  the  remedy  only.     The  rule  of  the  common 
law  is  that  the  limitation  of  actions  depends  on  the  law  of  the  forum, 
and  not  on  the  law  of  the  State  or  county  where  the  contract  was  made. 
A  statutory  bar  of  one  State  cannot  be  pleaded  in  another,  where  the 
bar  only  affects  the  remedy  of  the  contract  sued  on.     If  the  right  of 
action  on  a  contract  has  been  extinguished  by  a  statute  of  limitations 
in  another  State,  where  the  parties  reside,  the  courts  of  this  State  will 
give  effect  to  that  statute  in  any  suit  brought  in  this  State  on  such 
contract.     Perkins  v.  Quy,  55  Miss.  153. 

3154.  Mistake  of  fact  induced  by  attorney  of  opposite  party,  in 
matter  easy   of  verification,   no  ground  to   vacate  agreement   based 
thereon,   on   bill  filed    eight  j-ears  thereafter.     DeOere  v.  Healy  & 
Berry,  60  Ga.  391. 

3155.  Bank  bills  that  ceased  to  circulate  as  currency  prior  to  June 
1st,  1865,  came  under  the  limitation  act  of  1869.     That  the  bank  sur- 
rendered its  charter  in  1877,  and  its  assets  were  then  put  by  a  court 
of  equity  in  the  hands  of  a  receiver,  did  not  disengage  the  bills  from 
the  operation  of  said  act.     In  distributing  the  assets  between  creditors 
and  stockholders,  the  stockholders  can  insist  on  excluding  the  creditors 
as  to  all  the  demands  against  the  corporation  which  were  barred  by  the 


OF   STANDARD   DECISIONS.  435 

statute  of  limitations  prior  to  the  surrender  of  the  charter.    Johnston, 
et  al  v.  Talley,  et  aL,  60  Ga.  540. 

3156.  Generally  limitation  laws  act  only  upon  remedies,  and  do 
not  extinguish  rights.     A  surety,  therefore,  is  not  absolutely  discharged 
because  a  suit  against  him  would  if  brought  be  barred  in  the  courts  of 
this  State  by  section  2917  of  the  Code.     Were  he  to  subject  himself  to 
action  in  a  jurisdiction,  and  be  there  sued,  the  limitation  laws  of  the 
Code  would  not  avail  him,  though  they  had  fully  run  in  his  favor 
during  his  previous  residence  here.     Where  principal  and  surety  are 
both  residents  of  Georgia  at  the  execution  of  the  contract,  and  the  prin- 
cipal afterwards  removes  to  another   State,  the  statute  of  limitations 
is  suspended  as  to  him  until  his  return.     (Code,  §  2929.)     If,  before 
the   remedy  was  barred  as  to  the  principal,  but  after  it  was  barred  as 
.to  the  surety,  the  latter  made  a  new  promise  in  writing  at  the  instance 
of  the  creditor,  the  new  promise  is  binding,  though  he  made  it  in 
ignorance  of  the  true  limitation  law,  believing  the  remedjr  not  barred 
as  to  himself,  and  though  the  creditor,  in  like  ignorance  and  under  the 
same  belief,  told  him  it  was  not  barred,  and  thus  influence  his  action, 
there   being   no  fraud   or  abuse  of  confidence.     Langston,  Adm'r  v. 
Aderhold,  60  Ga.  376. 

3157.  When  two  separate  sums  are  received  by  one  bond,  a  pay- 
ment in  respect  of  one  sum  does  not  prevent  the  statute  running  in 
Tespect  of  the  other.     Ashlin  v.  Lee,  31   L.  T.  N.  S.  721  ;  23  W.  R. 
287  ;  44  L.  J.  Chancy.  174 ;  V.  C.  H.  (affirmed  on  appeal),  32  L.  T.  N. 
S.  348;  23  W.  R.  458;  44  L.  J.  Ch.  376  (Eng.) 

3158.  Statutes  of  limitation  will  not  bar  suit  on  coupons,  unless 
the  time  be  sufficient  to  bar  suit  on  bond  also.     City  of  Lexington 
v.  Sutler t  14  Wall.  U.  S.  282. 

3159.  Statute   of  limitations   has   no   application  to  an  express 
trust  where  there  is  no  disclaimer.     Seymore  v.   Freer,  8  WalL  U. 
5.  202. 

3160.  When  an  instrument  payable  at  a  bank  is  lodged  with  the 
bank  for  collection,  the  bank  becomes  the  agent  of  the  payee  to  receive 
payment.      Ward  v.  Smith,  7  Wall.  U.  S.  447. 

3161.  When  not  lodged  with  the  bank,  whatever  the  bank  receives 
from  the  maker  to  apply  upon  the  instrument,  it  receives  as  his  agent. 
Ibid. 

3162.  The  provision  of  the  Code  of  Procedure  (Old  Code,  §  99, 
«ub.  2),  declaring  that  an  action  shall  be  deemed  commenced,  within 
the  meaning  of  the  statute  of  limitations,  when  the  summons  is  de- 
livered to  the  sheriff  or  other  officer  with  intent  that  it  shall  actually 
be  served,  applied  only  to  defendants  who  were  parties  to  the  action  at 
the  time  of  such  delivery,  or  who  were  made  parties  before  the  statute 
had  run  against  the  claim  upon  which  the  action  was  brought.     Shaw 
v.  Cock,  78  N.  Y.  194. 

3163.  Such  delivery  of  the  summons  did  not  prevent  the  running 
of  the  statute  in  favor  of  persons  who,  although  liable  upon  the  obli- 
gation sued  upon,  were  not  named  as  defendants  in  the  summons  ;  and 
it  is  immaterial  whether  the  omission   was  by  design  or  through  ig- 
norance, mistake  or  inadvertence.     Shaw  v.  Cock,  78  X.  Y.  194. 

3164.  So,  also,  where  by  order  amending  the  summons  a  new  party 
•defendant   was   brought  in,  the  suit  was  only  commenced  as  to  him. 


436  MONROE'S  DIGEST 

when  thus  brought  in  ;  and  if  between  the  time  of  the  commencement 
of  the  action  as  to  the  original  parties,  and  the  time  when  the  new  de- 
fendant was  brought  in,  the  period  of  limitation  had  expired,  a  plea  of 
the  statute  in  bar  of  his  liability  is  good.  Shaw  v.  Cock,  78  N.  Y. 
194. 

3165.  Under  the  provisions  of  the  Code  of  Procedure  (§  92,  sub.  2) 
limiting  the  time  for  bringing  an  action  to  recover  a  penalty  to  three 
years,  where  an  action  is  brought  against  a  trustee  of  a  manufacturing 
corporation,  to  charge  him  with  debt  because  of  failure  of  the  corpora- 
tion to  file  an  annual  report,  more   than   three   years  after  January 
twentieth  of  the  year  when  the  alleged  failure  occurred,  the  action  is- 
barred ;  as   upon   that   day,   if  at   all,   the   cause  of  action   accrued. 
Knox  v.  Baldwin,  80  N.  Y.  610. 

3166.  An   action  against  a  stockholder  to  enforce  the  liability  im- 
posed where  all  the  capital  stock  has  not  been  paid  in,  is  barred  by  the- 
statute  of  limitations  after  the  expiration  of  six  years  from  the  time 
the  liability  was  incurred.     Knox  v.  Baldwin,  80  N.  Y.  610. 

3167.  A  foreign  corporation  sued  in  this  State  cannot  avail  itself 
of  the  statute  of  limitations ;  and   this,  although  it  has,  for  the  time 
specified  in  the  statute,  before  the  commencement  of  the  action,  con- 
tinuously operated  a  railroad  in  this  State,  and  has  property  and  officers 
therein.     Boardman  v.  L.  8.  &  M.  S.  R.  E.  Co.,  84  N.  Y.  157. 

3168.  An  acknowledgment  of  a   debt  by  the  personal  representa- 
tive of  the  original  debtor,  deceased,  will  not  take  case  out  of  statute. 
Thompson  v.  Peters,  12  Wheat.  U.  S.  565. 

3169.  The  lapse  of  six  years  is  not  a  bar  to  an  action  to  recover  a 
deposit ;  the  statute  of  limitations   only   begins  to  run  from  the  time 
payment  is  refused.      Thomson  v.  Bank  British  N.  Am.,  82  N.  Y.  1. 

3170.  Where  the  drawer  of  a  check  has  no  funds  at  the  time  in  the 
bank  to  meet  it,  the  check  is  due  immediately  without  presentment  and 
demand,  and  the  statute  of  limitations    begins   to   run  from  its  date. 
Brush  v.  Barrett,  82  N.  Y.  400. 

3171.  Where,  therefore,  the  holder  of  the  check   delays   for   six 
years  to  enforce  his  claim  it  is  barred  by  the  statute.     Brush  v.  Bar- 
rett, 82  N.  Y.  400. 


STATUTES. 

3172.  The  practical  construction  put  upon  a  statute  by  public  of- 
ficers whose  duty  it  is  to  obey  it  is  not  controlling  upon  the  courts. 
In  re  Manhat.  Sav'gs  Insfn,  82  N.  Y.  142. 


STOCK  AND  STOCKHOLDERS. 

3173.  As  between  a  corporation  and  corporator,  the  stock  book  i* 
evidence  of  their  relation ;  the  certificate  is  secondary  evidence.  As- 
signment of  a  certificate  is  only  an  equitable  transfer,  and  must  be 
produced  to  the  corporation  and  a  transfer  made.  Bank  of  Commerce's 
Appeal,  73  Penn.  St.  59. 


OF   STANDARD  DECISIONS.  437 

3174.  Stock  was  pledged  as  collateral  for  a  note  ;  the  pledgee  took 
a  mortgage  as  further  security  ;  the  stock  at  the  time  was  of  greater 
value  than  the  amount  of  the  mortgage  ;  the  pledgee  had  not  the  stock 
•during  the  pledge,  so  as  to  re-deliver  on  redemption.     The  mortgage 
was  to  be  credited  with  the  value  of  stock  when  executed.     Ashton's 
Appeal,  73  Penn.  143. 

3175.  An  agreement  for  a  valuable  consideration  by  A.  to  purchase 
from  or   sell  to  B.,  at  the  option  of  the  latter,  a  certain  number  of 
shares  of  stock  within  a  limited  time  at  a  specified  price,  is  not  per  se 
&  gaming  contract.     An  illegal  intent  will  not  be  presumed ;  and  in 
the  absence  of  proof  that  the  parties  were  merely  speculating  upon  the 
fluctuations  in  the  price  of  the  stock,  without  any  intent  that  A.  should 
deliver   or  accept,  but  simply   should  pay  differences,  the  contract  is 
valid  and  may  be  inforced.     Story  v.  Soloman,  71  N.  Y.  420. 

3176.  It  is  competent  for  a  party  to  show  any  facts  and  circum- 
stances surrounding  the  making  of  a  contract,  which  would  enable  the 
jury  to  determine  the  subject-matter  to  which  the  contract  was  in  fact 

applicable.  It  is  an  elementary  rule  of  construction  that  every  written 
instrument  should  be  interpreted  in  the  light  of  the  circumstances  sur- 
rounding its  execution,  and  it  is  error  for  the  court  to  exclude  evidence 
•of  the  circumstances  under  which  the  instrument  was  executed.  It  is 
only  where  there  is  no  evidence  in  law,  which,  if  believed,  will  sustain 
a  verdict,  that  the  court  is  called  upon  to  non-suit.  Bickett  v.  Taylor, 
55  Howard,  N.  Y.  126. 

3177.  If  any  one  stockholder  is  required  to  pay  debt  due  by  the 
corporation,  he  is  entitled  to  contribution  from  all  the  other  stockhold- 
ers whose  subscriptions  are  unpaid.     If  any  stockholder  who  has  not 
paid  up  his  subscription  claims  to  be  a  creditor  of  the  corporation,  his 
unpaid  stock  is  liable  for  the  debt,  and  he  cannot  recover  from  another 
stockholder  the  full  extent  of  his  claim.     By  the  act  of  1872,  ch.  325, 
-§  59,   all  the  stockholders  of  a  corporation  are  severally  and  individ- 
ually  liable  to  the  creditors  of  the  corporation  of  which  they    are 
stockholders,  to  an  amount  equally  to  any  unpaid  subscription  held  by 
them  respectively.      Weber  v.  Fickey,  47  Md.  196. 

3178.  A  person  is  presumed  to  be  the  owner  of  stock  when  his 
name  appears  on  the  books  of  a  company  as  a  stockholder ;  and,  when 
he  is  sued  as  such,  the  burden  of  disproving  that  presumption  is  cast 
upon  him.      Tarnbull  v.  Payson,  95  U.  S.  418. 

3179.  A    party  who  made  a  contract  with  an  organization  which 
had  attempted  irregularly  to  create  itself  into  a  corporation,  and  which 
acted  as  such,  or  who  subscribed  to  its  capital  stock,  cannot,  in  a  suit 
by  the  corporation,  defend  himself  against  a  claim  growing  out  of  such 
•contract  or  subscription,  by  alleging  the  irregularity  of  such  organiza- 
tion.    Chubb  v.  Upton  j  95  "U.  S.  665. 

3180.  A  subscriber  to  the  capital  stock  of  a  railroad  corporation, 
who  has  failed  to  pay  for  the  shares  subscribed  for,  as  required  by  the 
terms  of  his  subscription,  is  properly  chargeable  with  interest  from  the 
time  of  the  default,  and  cannot  compel  the  company  to  issue  the  stock 
until  not  only  the  principal  but  the  interest  is  paid.      Gould  v.  Town 
of  Oneonta,  26  Sickles  (71  N.  Y.)  268. 

3181.  Under  articles   of  association   which   had  been   adopted  as 
part  of  the  charter  of  the  bank  it  was  provided  that  so  long  as  a  stock- 


438  MONROE'S  DIGEST 

holder  might  remain  indebted  to  the  bank,  his  stock  should  not  be 
transferable.  Held,  that  the  defendant  was  not  liable  in  damages  for 
refusing  to  permit  the  indorser,  while  still  remaining  liable  on  his  in- 
dorsement, to  transfer  his  stock  on  the  books  of  the  bank.  Mc- 
Dowell Bank  of  N.  &  B.,  2  Del.  1. 

3182.  The  Michigan  Statute  (Comp.  L.  §  2852)  does  not  make  in- 
dividual  stockholders   primarily   liable   for  corporation    debts.     The 
liability  of  a  stockholder  for  a  corporation  is  discharged  by  the  credi- 
tors  extending  the  time  and  accepting  the  note  of  the  corporation. 
Hanson  v.  Donkersley,  37  Mich.  184. 

3183.  An  action  brought  by  a  stockolder  of  a  bank  on  behalf  of 
himself  and  other  stockholders  against  its  directors,  to  call  them  to  ac- 
count for  losses  and  damages  sustained  by  the  bank  because  of  miscon- 
duct and  negligence  on  their  part  in  the  discharge  of  their  duties,  is  an 
equitable  action,  wherein  the  defendants  are  not  entitled,  as  matter   or 
right,  to   a  trial  of  the  whole  issues  by  jury.     Brinkerhoff  v.  Bost- 
wick,  105  N.  Y.  567. 

3184.  It  seems  it  is  proper  in  such  an  action  to  frame  issues  to  be 
tried  by  a  jury.     Ibid. 

3185.  Certain  shares  in  a  company  incorporated  by  letters  patentr 
issued   under   27   and  28  Viet.  ch.  23,  were  allotted,  by  a  resolution 
passed  at  a  special  general  meeting  of  the  shareholders,  to  themselves,, 
in  proportion  to   the  number  of  shares  held  by  them  at  that  time,  at 
40  per  cent,  discount,  deducted  from  their  nominal  value,  and  scrip  is- 
sued for  them  as  fully  paid  up.     G.,  under  this  arrangement,  was  al- 
lotted nine  shares,  which  were  subsequently  assigned  to  the  appellant 
for  value  as  fully  paid  up  shares,  and  he  accepted  them  in  good  faith 
as  such,  and  a  year  afterwards  became  a  director  in  the  company.    The 
shares  appeared  as  fully  paid  up  on  the  certificates  of  transfer,  whilst 
on   each   counterfoil   in   the    share   book   the   amount  mentioned  was- 
"  Shares,  two,  at  $300=$600."     Held,  reversing  the  judgment  of  the 
Court  of  Appeal  for  Ontario,  that  a  person  purchasing  in  good  faithy 
without   notice,  from  an  original  shareholder,  under  22  and  28  Yict.r 
ch.  23,  as  shares  fully  paid  up,  is  not  liable  to  an  execution-creditor  of 
the   company  whose  execution  has  been  returned  nulla  bona,  for  the 
amount  unpaid  upon  the  shares.     (The  Chief  Justice  and  Ritchie,  J.r 
dissenting.)     McCraken  v.  Mclntyre,  1  Canada,  S.  C.  479. 

3186.  Where, a  manufacturing  corporation  gave  its  note  for  goods 
purchased,  which  was  indorsed,  discounted  and  renewed  from  time  to- 
time,  the  last  note  taken  up  by  the  vendor,  action  brought  thereon  and 
judgment  obtained  against  the  corporation,  that  the  indebtedness  arose 
on  the  purchase  and  became  due  on  the  maturity  of  the  first  note 
within  the  meaning  of  the  provisions  of  the  general  manufacturing  act 
(§  24,  chap.  40,  Laws  of  1848),  declaring  that  no*  stockholder  shall  be 
personally  liable  for  a  debt  of  such  a  corporation  unless  a  suit  for  the 
collection  thereof  shall  be  brought  against  it  within  one  year  after  the 
debt  became  due ;  and  that,  as  the  action  against  the  corporation  was- 
not  brought  within  a  year  after  the  maturity  of  the  first  note,  a  stock- 
holder was  not  personally  liable  for  the  debt,  because  of  failure  to  file 
a  certificate  of  the  paying  in  of  the  capital  stock  of  the  corporation,  as- 
required  by  said  act.     (§  10.)     Jagger  Iron  Co.  v.  Walker,  76  N.  Y, 
522. 


OF  STANDARD   DECISIONS.  439 

3187.  It  seems  that  the  bank  which  discounted  any  one  of  the 
notes  could  have  held  it  as  a  new  liability,  and  could  have  enforced  it 
irrespective  of  the  original  indebtedness.  Jagger  Iron  Co.  v.  Walker , 
76  N.  Y.  522. 


SUBROGATION. 

3188.  It  seems  to  be  a  settled  rule  of  equity  that  if  A.  owes  B. 
and  he  and  C.  are  bound  for  it,  and  A.  gives  C.  a  mortgage  or  bond  to 
indemnify  him,  B.  shall  have  the  benefit  of  it  to  recover  his  debt.    But 
a  private  arrangement  as  to  liability  of  securities,  as  between  them- 
selves, comes  neither  within  the  rule  nor  the  principle  upon  which  it 
rests. 

3189.  The  complaint  alleged  that  the  plaintiffs,  who  are  bankers, 
issued"  letters  of  credit  to  the  Atlantic  De  Laine  Co.     Hoyt,  Sprague  & 
Co.  guaranteed  to  plaintiffs  that  the  De  Laine  Co.  would  keep  its  con- 
tract, and  in  default  thereof  H.,  S.  &  Co.  would  hold  plaintiffs  harm- 
less of  loss.     E.  H.,  who  was  a  partner  of  the  firm  of  H.,  S.  &  Co., 
guaranteed  to  his  said  firm  the  payment  of  any  and  all  sums  of  money 
which  should  remain  due  and  owing  to  said  H.,  S.  &  Co.,  after  all  the 
property  of  the  Atlantic  De  Laine  Co.  should  have  been  applied  to  the 
payment  of  the  debts  of  said  Co.,  the  intention  of  said  guaranty  being 
to  secure  to  H.,  S.  &  Co.  the  payment  in  full  of  any  ascertained  balance 
of  account  due  them  by  said  Atlantic  De  Laine  Co.,  and  in  case  of  his 
death  his  personal  representatives  were  to  pay  such  ascertained  balance, 
for  which  he  would  be  liable  under  the  above  guaranty,  without  delay, 
out  of  his  assets  in  their  hands  applicable  to  the  paj'ment  of  his  debts. 
The  plaintiffs  ask  as  relief  that  the  balance  of  account  due  to  H.,  S.  & 
Co.  from  the  Atlantic  De  Laine  Co.  may  be  ascertained  and  determined, 
and  that  the  plaintiffs  may  be  adjudged  to  be  subrogated  to  all  rights 
of  said  H.,  S.  &  Co.  to  collect  the  said  balance  so  to  be  ascertained 
from  the  executors  of  E.  H.,  and  that  said  executors  be  directed  to  pay 
the  assets  in  their  hands  applicable  to  the  payment  of  the  debts  of  said 
E.  H.  to  the  plaintiffs,  to  the  extent  necessarj^  to  satisfy  their  claims 
and  demands.     On  demurrer  to  the  complaint  by  the  executors  of  E.  H. 
Held,  that  the  action  would  not  lie.     E.  H.  was,  in  no  just  sense,  a 
principal.     The  only  principal  was  the  Atlantic  De  Laine  Co.     H.,  S. 
&  Co.  were  sureties.     Held,  further,  that  H.'s  guaranty  was  to  secure 
an  ascertained  balance,  and  it  is  only  when  all  the  propert}'  of  the  De 
Laine  Co.  shall  have  been  applied  in  payment  of  its  debts  that,  within 
the  terms  of  the  guaranty,  the  balance  becomes  ascertained.     Morgan, 
et  al.  v.  Francklyn,  55  Howard,  Pr.  N.  Y.  244. 

3190.  A  surety  who  pays  the  debt  of  his  principal  is  subrogated  to 
all  the  remedies  of  the  creditors  as  against  the  principal,  or  others  who 
become  liable  for  the  debt.     Talbot,  et  al.  v.  Wilkins,  et  aZ.,  31  Ark.  411 


440  MONROE'S  DIGEST 


SUNDAY  CONTRACTS  AND  SALES. 

3191.  A  written  contract  made  on  Sunday,  but  bearing  the  date  of 
another  day  of  the  week,  may  be  transferred,  and  will  be  enforced  in 
the  hands  of  a  transferee  in  good  faith  and  without  notice.     Johns  v. 
Bailey,  et  al.,  45  Iowa,  241. 

3192.  A  contract  by  a  livery  stable  keeper  to  hire  a  horse  on  Sun- 
da}',  for  purposes  of  business  or  pleasure,  is  void;  otherwise,  if  it  is 
for  purposes  of  charity  or  necessity,  etc.     Stewart  v.  Davis,  31  Ark.  518. 

3193.  A  promissory  note  or  agreement  in  writing,  dated  on  Sun- 
day, in  payment  of  a  horse  purchased  on  the  same  day,  is  null  and 
void,  under  45  Geo.  3.     L.  C.  R.  221,  S.  C.  1859.     A  promissory  note, 
payable  to  order,  may  be  validly  made  on  the  Lord's  day,  commonly 
called  Sunday.     Kearney  v.  Kinch,  et  al,  7  L.  C.  J.,  31  S.  C.  1862. 

3194.  The  defendant  sold  a  horse  to  the  plaintiff  on  Sunday ;  the 
plaintiff  gave  his  bank  check  for  the  price  of  the  horse  on  the  same 
day ;  the  defendant  at  the  same  time  deposited  a  bill  of  sale  of  the 
horse  with  a  third  person,  to  be  delivered  to  the  plaintiff  when  the 
check  was  paid  ;  the  check  was  paid,  and  the  horse  and  bill  of  sale  were 
delivered,  all  on  a  secular  day  afterwards.     Held,  that  an  action  of 
assumpsit  to  recover  back  the  price  paid  for  the  horse  on  account  of  a 
deceit  practiced  in  the  sale  would  not  lie,  because  based  upon  a  trans- 
action tainted  with  illegality.     Plaisted  v.  Palmer,  63  Me.  576. 


SURETIES  AND  SURETY. 

3195.  Sureties,  not  having  paid  the  debt  for  which  they  are  bound, 
are  not  creditors  of  their  principal.     The  surety's  liability  for  his  prin- 
cipal is  not  a  valuable  consideration,  as  against  creditors  of  the  prin- 
cipal, for  a  bond  conditioned  for  the  pa}rment  of  a  sum  of  money  as  a 
debt.     Jefferson  v.  Tunnell,  et  al,,  2  Del,  135. 

3196.  A.,  B.  and  C.  were  co-sureties;  C.  died,  and  A.  and  B.  were 
forced  to  pay  the  debt  after  the  administration  on  the  estate  of  C.  had 
been  settled,  and  more  than  two  years  after  the  grant  of  letters.     Held, 
that  they  could  subject  assets  descended  to  the  heir  to  contribution. 

Williams,  et  al.  v.  Ewing  &  Fanning,  31  Ark.  229. 

3197.  The  sureties  on  a  joint  and  several  bond,  given  by  them  with 
A.  and  B.  as  principals,  to  dissolve  the  plaintiff's  attachment  of"  the 
:goods  and  estate  of  the  said  A.  and  B.,"  the  condition  of  which  is  that 
A.  and  B.  shall  pay  to  the  plaintiff"  the  amount,  if  an}',  which  he  shall 
recover  in  such  action,"  are  not  discharged  by  the  discontinuance  of 
the  action  as  to  A.     Poole  v.  Dyer,  123  Mass.  363. 

3198.  1st.  To  entitle  a  surety  to~an  assignment  and  execution  against 
his  co-sureties  under  section  7  of  art.  9  of  the  Code,  vol.  l,it  is  incum- 
"bent  upon  him  not  only  to  satisfy  the  judgment,  but  to  pay  the  whole 
amount  of  it.      Wilson,  et  al.,  Adm'rs  v.  Ridgely,  et  al.,  46  Md.  235. 

3199.  2d.  Whilst  it  is  an  undoubted  proposition  that  the  liability 
of  the  surety  is  not  to  be  extended  b}'  implication  beyond  the  terms  of 
his  written  contract,  by  which  his  responsibility  is  to  be  measured,  the 


OF  STANDARD   DECISIONS.  441 

bond  constituting  such  contract  must  have  such  construction  given  to 
it  as  to  carry  out  the  intention  of  the  parties  thereto,  and  in  this 
respect  there  is  no  difference  between  such  contract  and  any  other. 
Engler  v.  People's  Fire  Ins.  Co.,  46  Md.  322. 

3200.  Where  all  the  stockholders  of  a  corporation  give  their  joint 
and  several  note,  for  money  loaned  to  it,  they  are  co-sureties  as  between 
themselves,  in  proportion  to  the  relative  amounts  of  stock  owned  by 
them  respectively.     Coburn  v.  Wheelock,  34  N.  Y.  440 ;  S.  C.,  42  Barb. 
267. 

3201.  A  surety  paying  a  judgment  against  his  principal  and  him- 
self will  be  substituted  to  the  lien  of  the  judgment  upon  land  in  the 
hands  of  a  bona  fide  purchaser.     See  Judgments,  No.  3,  and  Edison  v. 
Huff,  et  al,  29  Va.  338. 

3202.  A  bond  on  which  the  principal  and  suretjr  are  both  bound, 
one  paid  by  the  surety  in  the  lifetime  of  the  principal,  without  assign- 
ment by  the  creditor,  or  agreement  to  assign,  is  forever  dead  as  a 
security,  as  well  in  equity  as  at  law.     There  can  be  no  subrogation  in 
such  a  case.     Gromer  v.  Grower's  Adm^rs,  29  Va.  280. 

3203.  A  surety's  payment  of  what  as  to  the  creditor  is  his  own 
debt  becomes  a  purchase  as  against  the  principal  debtor.     Fairchild  v. 
Lynch,  99  N.  Y.  359. 

3204.  A  banker's  lien  upon  all  securities  deposited  with  him  by  a 
customer,  and  received  by  him  bona  fide,  is  not  affected  by  any  equities 
which  may  exist  between  that  customer  and  a  third  party.     Misa  v. 
Currie,  35  L.  T.  N.  S.  414 ;  24  W.  R.  1049 ;  35  L.  J.  Exch.  414 ;  1  L. 
R.,  App.  Cas.  554— H.  L. 

3205.  An  indorser  of  an  accommodation  bill  has  a  right  to  notice 
of  dishonor,  unless  it  is  shown  that  he  would,  if  he  paid  the  bill,  have 
no  remedy  over  against  any  other  party  to  the  bill.      Turner  v.  Sam- 
son, 35  L.  T.  N.  S.  537— C.  A.  Eng. 

3206.  Estate  of  a  surety  bound  jointly  but  not  severally  with  his 
principal,  discharged  in  law  on  his  death,  the  other  obligor  surviving; 
and  in  equity  also  in   the  absence  of  equitable  circumstance  making 
him  liable.     Pickersgill  v.  Lahens,  15  Wall.  U.  S.  141. 

3207.  One  who  has  delivered  draft  as  collateral  security  has  no 
right  subsequently  to  forbid  or  to  attack  any  conditions  to  its  payment. 
Johnston  v.  Allen,  22  Fla.  224. 

3208.  If  after  a  right  of  action  accrues  to  a  creditor  against  two 
or  more  persons,  he  is  informed  that  one  of  them  is  a  surety  only,  and, 
after  that,  he  gives  time  to  the  principal  debtor  without  the  consent 
and  knowledge  of  the  surety,  the  rule  as  to  the  discharge  of  the  surety 
applies.     Overend,  Ourney  &  Co.  v.  Oriental  Financial  Corporation, 
7  L.  R.  H.  L.  Cas.,  348,  (Eng.) 

3209.  Merely  giving  an  additional  security  by  a  principal  will  not 
discharge  a  surety,  but  if  the  giving  of  such  security  is  really  a  con- 
sideration for  giving  time  to  the  principal,  it  will  do  so.     Ibid. 

3210.  Semble,  that  to  reserve  a  creditor's  rights  against  a  surety 
there  must  be  a  distinct  expression  of  intention  to  reserve  it.     Ibid. 

3211.  A  check  is  not  an  assignment  by  the  drawer  to  the  payee  of 
a  debt  or  a  chose  in  action  within  the  meaning  of  the  Judicature  Act, 
1873,  §  25,  Subs.  6.     Schroeder  \.  Central  Bank  of  London,  34  L.  T. 
N.  S.  735 ;  24  W.  R.  710,  C.  P.  Div.     Therefore  the  payee  of  a  check 


442  MONROE'S  DIGEST 

has  no  right  of  action  for  its  dishonor  against  the  banker  on  whom  it 
is  drawn.     Ibid. 

3212.  Where  one  person  becomes  surety  for  the  payment  of  money 
by  another,  who  is  himself  a  surety  for  a  third  person,  they  are  not  co- 
sureties ;    and   on  payment  of  the  principal  obligation  by  the  first 
surety,  the  secondary  one  is  discharged.     Remington  v.  Staats,  1  S.  C. 
394. 

3213.  "Where  a  party,  when  asked  to  sign  a  note,  as  surety,  refuses 
unless  another  person  will  first  execute  the  same,  and  the  principal 
maker  forges  the  name  of  such  other  person,  and  thereby  induces  the 
party  to  sign,  and  procures  money  of  an  innocent  party  who  has  no 
notice  of  the  fraud,  the  fact  of  the  forgery  and  the  fraud  will  not  re- 
lease the  surety  so  executing  the  same.     The  case  of  Seely  v.  The  Peo- 
ple, etc.,  27  111.  173,  is  departed  from  so  far  as  it  conflicts  with  the  rule 
as  above  laid  down.     Stoner  v.  Millikin,  et  al.,  85  111.  218. 

3214.  A  verbal  notice  by  a  surety  on  a  promissory  note  to  the 
holder  thereof,  to  proceed  at  once  to  collect  the  note  of  the  principal, 
and  a  verbal  agreement  by  said  holder  so  to  do,  do  not  waive  the  notice 
in  writing  required  by  the  statute,  and  a  failure  to  proceed  according 
to  the  verbal  agreement  will  not  operate  to  release  the  surety.     Chris- 
man  v.  Tuttle,  59  Ind.  155. 

3215.  An  extension  of  the  time  of  payment  of  a  promissory  noter 
upon  the  consideration  that  the  maker  will  annually  pay  interest  on 
the  note  at  the  rate  stipulated  therein,  will  not  release  the  surety. 
Ibid, 

3216.  A   surety  cannot  be  held  under  a  judgment  void  as  to  his 
principal.     McCloskey,  Bigley  &  Co.  v.  Wingfield  &  Bridges,  29  La.  141. 

3217.  The  surety  of  an  administratrix  who  fails  to  perform  her 
duties  as  prescribed  by  law,  has  a  right  to  be  released  from  his  bond. 
Sanders  v.  Adeline  Edwards,  29  La.  696. 

3218.  A  mortgage  was   given   to  secure  the  payment  of  notes ; 
their  time  of  payment  was  extended  by  the  holders,  there  being  no  evi- 
dence of  a  consideration  for  such  extension.     Held,  that  this  did  not 
discharge  the  surety.     Zane  v.  Kennedy,  73  Penn.  St.  182. 

3219.  An  agreement  without  consideration  to  give  time  to  a  debtor 
is  not  binding  on  the  creditor,  and  would  not  prevent  the  surety  from 
paying  the  debt  and  seeking  reimbursement  from  the  principal.     Ibid. 

3220.  A  surety,  who  holds  several  securities  by  way  of  indemnity, 
may  resort  to  either  of  them  for  payment.     Muller  v.  Dows,  94  U.  S. 
444. 

3221.  Married  woman  can  contract  no  liability  as  surety  for  her 
husband,  nor  make  a  mere  personal  obligation  not  connected  with,  nor 
charging  property,  nor  bind  herself  by  mere  personal  promise  jointly 
with  her  husband,  or  as  his  surety.     A  husband  cannot  sue  his  wife  at 
law  or  in  equity  to  enforce  a  purely  executory  contract.     Jenne  v. 
Marble,  37  Mich.  3h9  ;  Kitchell  v.  Mudgett,  et  al.t  37  Mich.  81. 

3222.  Part  payment  of  a  debt  already  due  is  not  a  sufficient  con- 
sideration for  an  agreement  to  extend  the  time  for  the  payment  of  the 
residue.      Turnbull  v.  Brock,  31  Ohio,  649. 

3223.  The  liability  of  a  surety  is  always  strictissimi  juris,  and 
may  not  be  extended  by  construction  beyond  his  specified  engagement. 
Nat.  Mech.  Bank  Ass'n  v.  Conkling,  90  N.  Y.  116. 


OP   STANDARD   DECISIONS.  44£ 

3224.  A  surety  who  takes  of  the  debtor  a  mortgage  for  his  in- 
demnity as  such  surety,  is  to  be  regarded  in  equity*  as  a  bona  fide  pur- 
chaser within  this  rule,  and  will  be  protected  to  the  extent  of  his  lia- 
bility as  surety.     Such  mortgage  executed  to  one  or  more  of  several 
sureties  on  the  official  bond  of  an  officer,  inures  to  the  benefit  of  all  the 
sureties,  as  well  to  those  who  subsequently  become  such  under  an  order 
of  court  requiring  "  additional  sureties  "  in   pursuance  of  law,  as  to 
those  who  were  sureties  at  the  date  of  the  mortgage.     Bank  v.  Teeters, 
31  Ohio,  36. 

3225.  A  bona  fide  purchaser  of  a  debtor's  land  from  a  fraudulent 
vendee,  without  notice  of  fraud,  or  of  the  rights  of  the  creditor,  ac- 
quires an  equity  superior  to  that  of  a  creditor,  who  obtained  a  judg- 
ment against  the  debtor,  and  levied  his  execution  on  the  land,  after  the 
date  of  the  fraudulent  sale,  and  prior  to  that  of  the  bona  fide  pur- 
chaser.    Second  National  Bank  v.  Teeters,  31  (Pe  Witt)  Ohio,  36. 

3226.  An  undertaking  by  an  infant  as  surety  for  the  stay  of  exe- 
cution is  not  void,  but  only  voidable,  and  when  ratified  by  him  after 
arriving  at  majority,  becomes  a  valid  and  enforceable  contract.  Harner 
v.  Dipple,  31  Ohio,  72. 

3227.  Surety  or  indorser  of  a  bankrupt  is  released  from  liability 
by  the  bankrupt's  payment  of  the  debt  to  the  creditor  who  accepts- 
payment  in  fraud  of  bankruptcy  law,  without  the  consent  of  the  surety 
or  indorser,  although  the  assignee  of  the  bankrupt  may  recover  the 
amount  so  paid  of  the  creditor.     The  judgment  in  favor  of  the  assignee 
against  the  creditor  establishes  conclusively  that  the  payment  was  ac- 
cepted, with  implied  notice  of  the  bankrupt's  insolvency  and  of  his  in- 
tention to  defraud  the  Bankrupt  Act.     Northern  Bank  of  Ky.  v.  Cooke, 
13  Bush,  Ky.  340. 

3228.  A  security  taken  by  one  of  several  co-sureties,  to  indemnify 
him  against  the  joint  liability,  inures  to  the  benefit  of  all.     Elwood  \. 
Deifendorf,  5  Barb.  398. 

3229.  Where  one  of  two  co-sureties  pays  the  debt  of  their  princi- 
pal, and  obtains  an  assignment  of  a  mortgage  held  by  the,  creditor  as 
collateral  security,  which  he  subsequently  forecloses,  and  himself  be- 
comes the  purchaser  of  the  mortgaged  premises  for  a  nominal  sum,  his 
co-surety  is  only  entitled  to  have  the  fair  cash  value  of  the  premisesr 
on  the  day  of  sale,  credited  on  the  original  debt ;  he  has  no  interest  in 
the  lands.     A  commission  of  five  per  cent,  and  the  expenses  of  fore- 
closure, are  proper  items  of  deduction  from  the  value  of  the  mortgaged 
premises.     Livingston  v.  Van  Rensselaer,  6  Wend.  63. 

3230.  If  the  surety  does  not  assent  to  an  alteration  of  the  terms 
of  his  undertaking,  it  ceases,  when  materially  altered,  to  be  his  con- 
tract, and  has  thenceforward  no  more  force  as  to  him  than  if  the  whole 
writing  had  been  a  forgery,  unless  it  has  previously  become  effectual 
by  delivery,  and  the  alterations  be  made  by  a  stranger.     Blakey  v. 
Johron,  13  Bush,  Ky.  197. 

3231.  A  surety  after  judgment  continues  for  most,  if  not  for  all 
purposes,  a  mere  surety,  and  is  entitled  to  demand  the  same  good  faith 
on  the  part  of  the  plaintiff  as  before  judgment.     Kouns  v.  Bank  of 
Ky.,  2  B.  Mon.  Ky.  303.     Also,  Hughes 's  AdnCr  v.  Hardesty,  13  Bush, 
Ky.  364. 

3232.  Surety  may  after  maturity   of  debt,  for  the  payment  of 


444  MONROE'S  DIGEST 

which  he  is  responsible,  replevy  goods  mortgaged  to  secure  the  pay- 
ment  of  which  he  is  responsible,  to  secure  him  as  surety,  and  may  fore- 
-close  such  mortgage,  although  he  has  not  actually  paid  such  debt. 
Bates  v.  Wiggins,  37  Kan.  44. 

3233.  A  surety,  against  whom  judgment  has  been  rendered,  may 
offset,  against  an  assignee  of  the  judgment,  whatever  claims  he  may 
have  purchased  against  the  plaintiff  in  the  judgment,  in  good  faith, 
without  notice  of  the  assignment.     Townsend  v.  Quinan,  47  Texas,  1. 

3234.  A  surety  cannot  benefit  by  an  exception  personal  to  the 
principal.     Jordan  &  Co.  v.  Anderson,  29  La.  749. 

3235.  The  mere  neglect  of  a  privileged  creditor  to  sue  will  not  re- 
lease the  surety  of  the  debtor,  even  to  the  extent  of  the  value  of  the 
privilege  held  by  the  creditor,  unless  it  be  proved  that  in  consequence 
of  such  neglect,  the  privilege  was  lost.     J.  D.  Hill  &  Co.  v.  Mrs.  Bour- 
oier,  et  al,  29  La.  841. 

3236.  In  an  action  on  a  bond  against  a  surety,  judgment  having 
been  obtained  against  the  principal,  he  is  a  competent  witness  for  the 
surety.     Although  there  was  an  expectation  by  a  surety,  by  the  state- 
ments of  the  principal  when  a  bond  was  signed,  that  there  was  to  be 
another  surety,  the  bond  was  binding  on  the  one  signing  although  not 
executed  by  the  other.     The  principal  owed  a  note,  which,  being  due, 
he  procured  a  surety  on  another  in  payment  of  the  first.     The  surety 
signed  it  in  blank,  gave  it  to  the  principal  to  fill  up,  and  use  it  in  pay- 
ment of  the  first  note.     Held,  that  thereby  the  surety  made  the  prin- 
cipal his  agent  to  complete  the  note.     The  surety  could  not  relieve 
himself  from  liability  to  the  obligee  who  took  the  note  bona  fide  for  a 
valuable  consideration,  by  showing  that  his  instructions  as  to  filling  up 
the  note  were  not  followed,  the  surety  having  created  confidence  by 
putting  the  note  in  blank  into  the  principal's  hands,  must  suffer  the 
loss   as   between   himself  and   another   innocent   party.     Simpson   v. 
Bovard,  74  Penn.  St.  Repts.  351. 

3237.  A  surety  upon  a  bond  will  not  be  discharged  from  liability 
by  the  fact  that  the  name  of  a  co-surety,  on  the  faith  of  which  his  sig- 
nature has  been   procured,  was  a  forgery,  nor  by  the  fact  that  the 
surety  whose  name  was  forged  gave  him  no  information  of  the  fact, 
where  the  condition  upon  which  the  surety  signed  is  unknown  to  the 
officer  to  whom  the  bond  is  given,  at  the  time  he  accepts  the  same. 
State,  et  al.,  Brown  v.  Baker,  et  al.,  64  Mo.  167  ;  State,  et  al.  v.  Potter. 
63  Mo.  212. 

3238.  Judgment  was  rendered  against  one  of  the  makers  of  a 
promissory  note,  who  appealed  to  the  court  of  common  pleas,  where 
the  plaintiff  again  recovered.     The  undertaking  of  the  surety  was  to 
pay  any  judgment  rendered  against  appellant.     Held,  that  the  surety 
is  liable,  notwithstanding  another  maker  of  the  note  was  made  a  party 
in  the  appellate  court,  and  judgment  was  rendered  against  both  mak- 
ers.    Helt  v.  Whittier,  31  Ohio,  475. 

3239.  An  agreement  between  the  payee  and  principal  of  a  note, 
for  the  extension  of  the  time  of  its  payment  for  a  fixed  and  definite 
period,  in  consideration  of  the  same  rate  of  interest  as  that  named  in 
the  note,  is  valid,  without  the  payment  of  the  interest  in  advance,  and, 
if  made  without  the  knowledge  of  the  sureties,  will  discharge  them. 
Fawcett  v.  Freshwater,  31  Ohio,  637. 


OP   STANDARD  DECISIONS.  44t> 

3240.  The  statute  providing  that,  where  the  principal  maker  of  a 
joint  note  dies,  the  payee  or  assignee  shall  present  the  same  against 
the  estate  of  the  decedent  for  allowance,  and  that,  upon  a  failure  to  do- 
so,  the  sureties  shall  be  released,  is  not  a  mere  statute  of  limitations. 
On  the  contrary,  the  statute  forms  a  part  of  the  contract,  upon  which 
the  sureties  have  a  right  to  rely,  even  in  case  of  a  note  payable  to  the 
trustees  of  schools  ;  and  if  the  note  is  not  presented  within  the  time 
limited  by  the  statute,  the  sureties  will  be  released.     House  v.  Trustees 
of  Schools,  83  111.  368. 

3241.  Where,  in  an  action  on  a  promissory  note  against  several 
apparently  joint  makers,  one  of  the  defendants  appear,  and,  upon  de- 
fault of  his  co-defendants,  and  without  any  notice  to  them  other  than 
the  original  summons  in  the  cause,  alleges  and  obtains  a  judgment 
against  them,  that  they  are  principals  and  he  a  surety  only,  and  asks 
and  obtains  a  decree  that  execution  be  first  levied  on  their  property, 
such  judgment  and  order,  as  between  the  defendants,  are  utterly  void 
for  want  of  proper  notice,  and  will  not  support  a  plea  of  a  former  ad- 
judication of  such  matter.     Fletcher  v.  Holmes,  25  Ind.  458.     In  Pat- 
tison  v.  Vaughan,  40  Ind.  253,  and  Feutriss  v.  The  State,  ex  rel.,  etc.,  44 
Ind.  271,  appear  in  conflict,  but  those  decisions  were  announced  over- 
ruled by  the  court  in  Joyce,  et  al.  v.  Whitney,  et  al.,  57  Ind.  550.  Heldr 
further,  the  complaint  of  one  defendant  against  another,  to  establish 
the  alleged  suretj'ship  of  the  former,  is  not  a  mere  cross-corn  plaint,  but 
is  a  new  and  original  proceeding  which  cannot  be  tried  upon  the  sum- 
mons issued  by  the  plaintiff.     Ibid. 

3242.  The  circumstance  that  a  security  has  become  or  is  invalid 
and  cannot  be  enforced,  either  at  law  or  equity,  does  not  entitle  a  party 
to  come  into  a  court  of  equity  to  have  it  decreed  to  be  surrendered  or 
extinguished  without  paying  the  amount  equitably  due  thereon.     Tut' 
hill  v.  Morris,  81  N.  Y.  95. 

3243.  If  a  surety  sign  a  bond  which  he  is  not  prevented  from 
reading  by  any  trick  or  artifice  of  the  obligee,  without  reading  it  or 
having  it  read  to  him,  in  ignorance  of  its  contents,  he  cannot  avoid  his 
obligation  on  it  because  it  is  other  than  he  thought  it  to  be.     Johnston r 
et  al.  v.  Patterson,  114  Pa.  398. 

3244.  It  is  true  there  is  a  line  of  cases  which  decide  that  when  an 
illiterate  man  executes  a  writing  which  has  been  falsely  read  to  him,, 
he  is  not  bound.     Green  v.  North  Buffalo    Township,  56  Pa.  110  ; 
Schuylkill  County  v.  Copley,  67  Ind.  386. 

3245.  It  is  well  settled  that  no  mere  indulgence  by  the  creditor 
toward   the  principal   debtor   will   release  the  surety,  provided  the 
creditor  does  not  by  any  affirmative  act  diminish  the  value  of  any 
security   that   he   may   have,   or   tie   up   his   own  hands  against  the 
principal    debtor,    or    release    any    claim    he    may    have    acquired 
against  the  property  of  the  latter.     Clopton  v.  Spratt,  et  al.,  52  Miss. 
251. 

3246.  While  indulgence  and  passiveness  by  the  creditor  with  re- 
gard to  collateral  placed  in  his  hands  by  the  principal  debtor  will  not 
release  the  surety,  yet  if,  by  any  improper  or  unskilful  dealing  with 
such  collateral,  he  impairs  its  value,  or  if  he  so  treat  it  as  to  make  it 
his  own,  the  surety  will  be,  pro  lanto,  released.     Clopton  v.  Spratt,  et 
al,  52  Miss.  251. 


446  MONROE'S  DIGEST 

3247.  The  officers  and  managers  of  a  railroad  or  other  stock  com- 
pany stand  to  its  stockholders  and  bondholders  in  a  very  legitimate 
sense,  in  the  capacity  of  trustees  of  their  property,  and  are  bound  to 
act  in  their  interest.     Jackson  v.  Ludeling,  21  Wall.  U.  S.  616. 

3248.  Indulgence  or  non-action,  though  in  the  meantime  the  prin- 
cipal should  become  insolvent,  unaccompanied  by  any  act  of  the  credi- 
tor whereby  the  hazard  is  increased,  will  not  discharge  the  surety ; 
nor  the  failure  to  issue  execution,  or  to  point  out  property,  or,  if  the 
execution  be  levied  on  the  principal's  property,  the  failure  to  make  up 
an  issue  with  a  claimant  who  has  replevied  ;  nor  the  failure  to  enroll  a 
judgment  on  a  forfeited  forthcoming  bond,  whereby  a  junior  judgment 
obtained  priority.    But  if  indulgence  is  granted  for  a  definite  time  pur- 
suant to  an  agreement  supported  by  a  valuable  consideration  so  as  to 
tie  up  the  hands  of  the  creditor,  and  the  surety  does  not  consent  to 
such  an  agreement,  he  will  be  exonerated  from  liability.      Wright  v. 
Wa.tt,etaL,  52  Miss.  634. 

3249.  Any  unauthorized  variation  in  an  agreement  which  a  surety 
has  signed,  that  may  prejudice  him,  or  any  substitute  an  agreement 
•different  from  that  which  he  came  unto,  discharges  him.     Smith  v. 

United  States,  2  Wallace,  U.  S.  219. 

3250.  The  owner  of  negotiable  securities  which  have  been  stolen 
may  follow  them  and  reclaim  them,  in  whose  hands  soever  they  may  be 
found :  and  when  shown  that  the  securities  had  been  stolen  from  the 
owner,  the  burden  is  upon  the  holder  to  show  that  he  took  them  in  the 
usual  course  of  business  and  for  value,     Robinson  v.  Hodgson,  73  Penn. 
St.  202. 

3251.  In  trover  for  such  securities,  merely  showing  that  they  were 
in  possession  of  another  from  whom  defendant  or  his  immediate  bailor 
received  them  is  not  a  defence.     Ibid. 

3252.  A  holder's  possession  is  prima  facie  evidence  of  ownership, 
because  the  presumption  is  that  it  was  honestly  acquired.     Ibid. 

3253.  A  surety's  right  of  action  against  a  co-surety  does  not  ac- 
•crue  until  he  has  paid  in  excess  of  his  proportionate  share  of  liability. 
Magruder   v.    Admire,  et  al.,   4    Mo.  Court  of  Appeals  (St.  Louis) 
133. 

3254.  In  an  action  for  contribution  by  a  surety  against  one  of 
several  co-sureties,  the  measure  of  defendant's  liability  is  controlled  by 
the  number  of  his  co-sureties  who  remain  solvent.     Ibid. 

3255.  Contribution,  security  on  official  bond  who  aids  principal  in 
breach,  not  entitled  to  from  co-securitj7.     Scofield  v.  Gaskill,  et  al.,  60 
•Ga.  277  ;  also,  Healey,  Berry  &  Co.  v.  Scofield,  60  Ga.  450. 

3256.  In  an  action  upon  an  undertaking,  the  law  will  not  increase 
•or  enlarge  the  terms  of  the  undertaking  to  the  prejudice  of  its  signers, 
nor  create  a  liabilit}'  against  the  sureties  which  they  did  not  intend  to 
incur,  and  which  is  not  within  the  express  conditions  of  the  bond. 
Hays  v.  Closon,  20  Kansas,  120. 

3257.  Judgment  on  replevy  bond  in  attachment,  motion  to  set 
aside  by  principal,  because  of  fatal  defect  on  face  of  affidavit,  overruled, 
not  bar  to  similar  motion  by  surety.     Neal  v.  Gordon,  60  Ga.  112. 

3258.  A  surety    for  a  tenant  is  not  released  as  to  rents  subse- 
quently accruing,  because  of  a  release,  nor  an  extension  of  the  time  of 
payment  of  rent  due.     Coe  v.  Cassidy,  72  N.  Y.  App.  134. 


OF   STANDARD   DECISIONS.  447 

3259.  The  promise  of  a  surety  assuring  the  payment  of  the  price 
of  a  specific  lot  of  goods  to  be  sold  to  the  principal  debtor,  is  not 
a    continuing    guarantee,    and    hence    does   not   cover   other   goods 
subsequently  sold  to  the  principal.      Bloom  &  Co.  v.  Kern,  30  La. 
1263. 

3260.  A  valid  agreement  to  give  time  on  a  promissory  note  to  the 
principal,  will  discharge  the  surety.      Thompson  v.  Bowne,  39  N.  J. 
Law,  2. 

3261.  Discharge    of  the  principal  discharges  the  known  surety. 
Paddleford  v.  Thacher,  48  Vt.  574. 

3262.  A  surety  or  creditor  has  a  right  to  have  any  collaterals  the 
debtor  may  have  pledged  to  either  for  the  payment  of  their  debt,  at 
any  point  in  the  transaction,  applied  to  the  payment  of  the  debt.  Price 
v.  Tusdell,  28  N.  J.  Eq.  200. 

3263.  Under  the  law  of  this  State  the  discharge  in  bankruptcy  of 
the  principal  on  an  appeal  bond,  will  not  release  the  surety  on  that 
bond  from  any  obligation  he  incurred  by  signing  the  bond.     The  surety 
•who  pays  the  debt  of  his  principal  is  subrogated,  by  mere  operation  of 
law,  to  all  the  rights  of  the  creditors.     No  act  of  subrogation  by  the 
creditor  in  his  favor  is  required.     Serrae  Hijo  v.  Hoffman  &  Co.,  30 
La.  67. 

3264.  The  general  rule,  that  a  contract  void  as  to  principal,  is 
void  also  as  to  surety,  does  not  apply  where  a  person,  sui  juris,  guar- 
antees the  obligation  of,  or  becomes  surety  for,  a  married  woman,  minor 
or  other  person  incapable  of  contracting.     Hicks  v.  Randolph,  et  al.,  59 
Tenn.  352  (3  Baxter). 

3265.  A  surety  upon  a  judgment  by  confession  has  the  right  to 
expect  that  the  judgment  will  be  entered  of  record  within  a  reasonable 
time ;   and  he  is  released  from  liability  by  an  agreement  between  the 
judgment  creditor  and  his  principal  that  the  judgment  shall  not  be 
recorded,  in  pursuance  of  which  it  is  not  entered  of  record  until  after 
the  lapse  of  an  unreasonable  time.      Hancock  v.    Wilson,  46  Iowa, 
352. 

3266.  Sureties  in  a  bond  given  to  secure  performance  by  their 
principal  of  future  mercantile  engagements,  and  in  which  no  period  of 
limitation  of  liability  is  fixed,  who  have  notified  the  obligees  that  they 
will  no  longer  be  bound  for  future  transactions,  are  held  discharged 
from    liability   for   transactions    thereafter   entered    upon,  where   no 
change  in  circumstances  by  the  obligees  has  occurred  on  the  faith  of  a 
longer  continuance  of  the  suretyship,  and  the}'  are  not  prejudiced  by 
such  withdrawal.     Jendevine  v.  Rose,  36  Mich.  54. 

326*7.  In  a  suit  by  a  bank  against  a  late  cashier  and  the  sureties 
on  his  official  bond,  upon  the  death  of  the  cashier  insolvent,  the  cause 
will  proceed  against  the  sureties,  though  no  administrator  of  the  cashier 
may  have  been  appointed  and  made  a  party  defendant.  Farmers'  and 
Mechanics'  Bank  v.  Polk,  et  al.,  1  Del.  Chancery,  167. 

3268.  Proof  of  debt  in  bankrupt  court  by  judgment  creditor  dis- 
charges lien,  and  indorser  is  discharged  to  extent  of  injury  thereby 
received.  Evidence  of  older  liens  sufficient  to  exhaust  all  of  princi- 
pal's property,  admissible  to  show  that  no  injury  was  thereby  done  to 
indorser,  and  if  such  be  the  fact,  he  is  not  discharged.  Surety  assent- 
ing to  application  of  proceeds  of  property  of  principal  to  junior  liens, 


448  MONROE'S  DIGEST 

receiving  part  himself,  not  discharged.  Nor  is  indorser  discharged, 
who  was  also  counsel  for  principal  in  obstructing  collection  of  debts, 
by  acts  which  grew  out  of  litigation  conducted  by  such  counsel.  Jones 
v.  Hawkins,  60  Ga.  52. 

3269.  In  an  action  by  the  payee  against  the  estate  of  a  deceased 
co-surety  on  a  promissory  note,  the  administrator  set  up  as  a  defence 
that  his  decedent's  co-surety,  within  the  time  necessary  for  service  of 
process,  after  the  maturity  of  such  note,  had  executed  an  assignment 
for  the  benefit  of  his  creditors,  providing  therein  that  the  assignee 
should  complete  his  trust  within  three  years,  to  which  assignment  the 
plaintiff  had  assented.     Held,  that  such  assent  and  assignment  would 
have  been  no  bar  to  an  action  on  such  note,  against  such  insolvent 
surety,  within  three  years.     Held,  also,  that  such  assent  was  not  nec- 
essary, to  the  validity  of  such  assignment.     Held,  also,  that  such  assent 
not  having  injured  the  decedent,  did  not  release  his  estate.     Paul  v. 
Logansport  Nat.  Bank,  60  Ind.  199. 

3270.  A  surety  has  the  right  to  stand  upon  the  very  terms  of  his- 
contract ;    and  if  such  contract  be  altered  or  varied  in  any  material 
point  without  his  consent,  so  as  to  constitute  a  new  agreement  varying 
substantially  from  the  original,  he  is  no  longer  bound.     Any  subse- 
quent addition  to  or  deviation  from  the  contract,  is  such  an  alteration 
as  will  discharge  the  surety.     But  if  by  the  terms  of  the  original  con- 
tract, additions  to,  or  alterations  in  the  work  is  provided  for,  or  left  to 
the  judgment  and  discretion  of  the  other  contracting  party,  either 
without  limit  or  within  certain  limits,  then  the  variation,  if  within  the 
limits  prescribed,  is  allowed  by  the  contract  itself,  and  the  surety  can- 
not complain  of  a  variation  which  he  has  agreed  to  by  the  original  con- 
tract.     Wehr  v.  German  Lutheran  and  Ev.  Congregation  of  Baltimorer 
47  Md.  177. 

3271.  When  a  judgment  is  rendered  against  principal  and  surety, 
in  which  the  relations  of  principal  and  surety  are  properly  certified, 
the  surety  cannot  thereafter  obtain  an  injunction  to  stay  the  levy  of 
an  execution  upon  his  property,  on  the  ground  that  prior  to  the  judg- 
ment the  creditor  agreed  with  the  principal,  in  consideration  of  the 
latter's  withdrawing  his  answer,  that  he  would  not  attempt  to  collect 
the  judgment  from  the  principal  until  he  had  exhausted  the  surety's- 
property,  nor  on  the  ground  that  the  creditor  had  delayed  issuing  exe- 
cution on  the  judgment  until  the  principal,  who  had  personal  property 
sufficient  to  satisfy  the  judgment,  had  become  insolvent.     Fox  v.  Hud- 
son, 20  Kansas,  246. 

3272.  In  an  action  between   co-sureties  for  contribution,  the  de- 
fendant cannot  avail  himself  of  an  indebtedness  of  the  plaintiff  to  the 
principal  as  a  defence.     Davis  v.  'Toulmin,  77  N.  Y.  280. 

3273.  A  parol  promise  to  indemnify  one,  if  he  will  go  security  for 
a  third  person,  is  within  the  statute  of  frauds  and  perjuries  and  can- 
not be  inforced.     Nugent  v.  Wolfe,  111  Pa.  471 ;  Allshouse  v.  Ramsay r 
6  Wheat.  331  ;  Shoemaker  v.  King,  40  Pa.  107  ;  Miller  v.  Long,  45  Pa. 
350  ;    Townsend  v.  Long,  77  Pa.  143. 

3274.  When  negotiable  notes,  payable  to  bearer,  are  deposited  as- 
collateral    security   for    a    debt,  the   creditor   is   not   a   mere   mort- 
gagee, on  lien  holder,  who,  in  case  of  the  death  of  his  debtor,  must 
prove  up  such  debt  in  the  Probate  Court.     He  may,  after  his  debt  is- 


OF   STANDARD   DECISIONS.  449 

due,  collect  and  apply  the  proceeds  to  his  debt.  If  such  notes  are  un- 
collectible, and  the  creditor  be  driven  to  treat  them  as  mere  personal 
property  pledged  to  secure  the  debt,  and  to  invoke  the  aid  of  the 
courts  to  realize  upon  the  security,  then  the  matter  might  come  within 
the  reach  of  the  Probate  Laws,  and  the  creditor  be  compelled  to  prove 
his  claim,  and  the  securities  be  administered  under  the  Probate  Laws. 
An  answer  resisting  a  suit  for  the  possession  of  negotiable  notes  in 
possession  of  defendant,  on  the  ground  that  they  are  held  as  collateral 
security,  should  show  the  amount  of  the  debt  secured  by  them. 
Huyler  v.  Dahoney,  48  Texas,  234. 

3275.  A  person  indebted  by  bond,  paid  a  balance  due  upon  it  in 
notes  of  an  insolvent  bank,  which  was  not  known,  at  the  time,  to  have 
stopped  payment.     Held,  not  to  be  a  discharge  in  equity  of  the  debt, 
but  that  the  creditor  might  recover  the  balance  due  before  such  pay- 
ment.    Jefferson,  et  al.  v.  Holland,  1  Del.  Chancery,  116. 

3276.  If  the  maker  of  a  promissory  note,  as  collateral  security 
for  its  payment,  assigns  personal  property  to  the  payee,  and,  as  addi- 
tional security,  third  persons  sign  the  note  as  sureties,  the  liability  of 
the  sureties  becomes  fixed  at  the  time  the  collateral  security  is  ex- 
hausted.    Dussol  v.  Bruguiere,  50  Cal.  456. 

3277.  The  liability  of  sureties  on  a  promissory  note  is  not  dis- 
charged by  the  Statute  of  Limitations  until  four  years  after  their  lia- 
bility becomes  fixed.     Ibid. 

3278.  When  several  persons  are  sureties,  and  all  but  one  pay  the 
whole  sum  for  which  all  became  liable,  those  who  pay  may  maintain  a 
joint  action  for  contribution  against  the  one  who  failed  to  pay  his  pro- 
portion, provided  they  jointly  paid  the  money.     Ibid. 

3279.  If  one  of  several  sureties  dies,  his  executor  may  be  joined 
•with  a  part  of  the  sureties  in  an  action  against  another  for  a  contribu- 
tion.    Ibid. 

3280.  If  one  of  two  sureties  dies,  and  his  executor  pays  all  the  money 
for  which  both  became  liable,  without  having  the  claim  allowed  in  the 
Probate  Court,  he,  as  executor,  can  recover  the  demand  for  a  contribu- 
tion from  the  other  surety.     Ibid. 

3281.  A   settlement   in   the   Probate    Court,  b}*  the  principal,  ia 
binding  upon  the  surety,  not  because  he  is  a  party  to  the  suit,  but  be- 
cause it  is  an  act  his  principal  is,  by  law,  required  to  perform,  and  is 
within  the  condition  of  the  bond.     Neither  the  settlement  nor  decree 
determines  the  fact  of  suretyship ;  or,  if  it  once  existed,  that  it  con- 
tinned.     Gravett  v.  Malone,  54  Ala.  19. 

3282.  A  confession  of  judgment  by  a  principal,  has  on  the  surety 
only  the  force  of  a  private  agreement  between  the  principal  and  his 
creditor.     Even  after  a  judgment  against  the  principal,  any  agree- 
ment made  with  him  by  the  creditor,  without  the  assent  of  the  surety, 
which   defers   payment,  or   in  any  wise  impairs  the  recourse  of  the 
surety  against  the  principal,  will  discharge  the  surety.     Allison  v. 
Thomas  &  Rosenfeld,  29  La.  732. 

3283.  When  the  owner  of  a  note  holds  collateral  security  for  the 
same,  the  release  of  such  security  does  not  discharge  a  surety  upon 
the  note,  if  such  release  was  given  at  the  surety's  instance  and  with 
his  consent.     Pence  v.  Gale,  20  Minn.  257. 

3284.  In  an  action  on  a  promissory  note,  payable  in  bank,  against 
29 


450  MONROE'S  DIGEST 

a  principal  and  surety,  wherein  judgment  by  default  had  been  rendered 
against  the  principal,  the  surety  thereafter  answered,  alleging  that, 
though  requested  by  the  surety  to  levy  on  certain  personal  property 
belonging  to  the  principal,  the  plaintiff  had  caused  the  sheriff  to  hold 
the  execution  without  levy,  and  that  the  principal  had  thereafter  died 
insolvent.  Held,  on  demurrer,  that,  even  if  such  answer  could  be 
made  sufficient,  it  is  insufficient  for  want  of  an  averment  that  such 
property  was  subject  to  execution,  and  of  a  value  sufficient  to  satisfy 
the  same;  it  being  an  answer  to  but  part,  though  pleaded  to  the 
whole,  of  the  complaint.  Scott  v.  Shirk,  60  Ind.  160. 

3285.  Upon  principles  of  equity,  a  surety,  as  between  himself  and 
his  principal,  stands   upon  a  different  footing,  in  some  respects,  from 
an  ordinary  creditor.     He  is  entitled  to  full  indemnity  against  the  con- 
sequences of  the  default  of  the  principal,  and  is,  therefore,  entitled  to 
call  upon  him  for  reimbursement  not  only  of  what  he  may  have  been 
obliged  to  pay  in  discharge  of  the  obligation  for  which  he  was  surety  ; 
but  also  of  all  reasonable  expenses  legitimately  incurred  in  conse- 
quence of  such  default,  or  for  his  own  protection.     These  do  not  in- 
clude expenses  incurred  in  defending  himself  against  the  just  claim 
of  the  creditor,  nor  remote  and  consequential  damages  sustained  by 
the  surety,  such  as  sacrifices  of  property  for  the  purpose  of  meeting 
his  liability,  loss  of  time,  injury  to  business,  expenses  incurred  in 
seeking  to  avoid  payment,  etc.     The  cases  hold  that,  on  the  debt  be- 
coming due,  the  surety  may  go  into  equity  to  compel  the  principal  to 
pay,  and  the  creditor  to  receive  payment  ;  and  that  he  may  also,  in 
equity,  compel  the  creditor  to  proceed  against  the  principal  debtor  for 
the  collection  of  his  demand,  upon  giving  security  and  indemnifying 
the  creditor  against  delay  and  expenses.      Thompson  v.  Taylor,  72  N. 
T.  App.  32. 

3286.  Facts,  and  not  mere  conclusions  of  law,  must  be  stated  in 
pleadings.     Thus,  in  an  action  against  a  surety  upon  a  promissory 
note,  where  forbearance  to  the  maker  is  sought  to  be  interposed  ;  it  is 
not  sufficient  to  cover  merely  that  "  for  good  and  sufficient  consider- 
ation "  further  time  was  given.     The  consideration  must  be  stated. 

3287.  The  discharge  of  a  surety  upon  a  promissory  note,  on  the 
ground  of  forbearance,  may,  in  an  action  against  the  surety,  be  given 
in  evidence  under  the  general  issue.      Winne,  et  al.  v.  Col.  Sp'g  Co., 
3  Colo.  155. 

3288.  To  exonerate  a  surety  from  liability  upon  the  ground  of 
forbearance,  the  extension  must  be  for  a  time  and  upon  a  consideration 
binding  upon  the  creditor.     Ibid. 

3289.  Limitation   laws  act  upon  and  do  not  extinguish  rights. 
Hence,  surety  is  not  absolutely  discharged  because  suit  against  him 
would  be  barred  in  Courts  of  this  State  by  section  2917.  of  Code.     For- 
eign jurisdiction,  if  sued  there,  limitation  laws  of  this  State  would  not 
avail  him.     New  promises  by  surety,  after  bar  as  to  him,  but  before 
bar  as  to  principal,  though   made  in  ignorance  of  true  limitation  law, 
believing  the  remedy  not   barred  as  to  himself,  binding  in  absence  of 
fraud  and  abuse  of  confidence  on  part  of  creditor.     Langston  Adm^rs 
v.    Aderhold,  60  Ga.  376. 

3290.  N.  became  suret}'  upon  a  note  of  L.,  and  the  latter  executed 
a   mortgage   to   secure   him   against   loss  by  reason  of  his  becoming 


OF   STANDABD   DECISIONS.  451 

surety  ;  judgment  having  been  obtained  upon  the  note  against  both  L. 
and  N.,  and  the  other  property  of  L.  being  found  insufficient  to  satisfy 
the  judgment,  N.  directed  the  sheriff  to  levy  upon  the  property 
covered  by  his  mortgage,  which  was  accordingly  sold  to  satisfy  the 
judgment.  Held,  that  the  sale  waS  valid  and  absolute  and  that  N. 
<;ould  not  enforce  his  mortgage  against  the  property.  Exline  v. 
Lowery,  et  al.,  46  Iowa,  556. 

3291.  Certain  sale  notes  were  deposited  with  defendants  as  col- 
lateral security  for  the  payment  of  a  note,  indorsed  by  the  plaintiff 
for   the  accommodation  of   one    M.,   and   discounted    by   defendants 
for   M.     The   collaterals   were   of  the   same   value   as   the   principal 
note,   and   were    to    be    paid    into    the    bank    and    applied   on   the 
note,    so    that    when    they   were    paid,   the    note    also   was    to    be 
paid  and  the  plaintiff's  liability  to  cease.     After  the  principal  note  be-, 
•came  due,  defendants  denied  that  they  held  the  sale  notes  as  collaterals 
and  refused  to  give  the  plaintiff  any  information  as  to  what  had  been 
paid  on  them ;  and  the  plaintiff  then   paid  the  note  in  full,  and  de- 
manded an  assignment  of  the  collaterals,  the  plaintiff's  payment  being 
made  by  a  part  payment  in  cash  and  his  note  for  the  balance  which  he 
paid  at  maturity.     Held,  that  the  plaintiff  could  not  maintain  trover 
against  defendants  for  the  collaterals  ;  for  although,  under  26  Vic.  Ch. 
45,  §  2,  he  was  entitled  to  the  immediate  possession  of  them,  he  had 
not  until  assignment  any  property  in  them  vested  in  him.     Semble, 
that  the  plaintiff's  remedy  would  be  by  a  special  action  on  the  case 
against  defendants  for  not  assigning  the  notes  to  him  after  demand 
-duly  made.     Held,  however,  that  plaintiff  was  entitled  to  recover  as 
money  had  and  received  to  his  use,  the  amount  paid  to  defendants  on 
the  collaterals,  and  that  the  fact  of  his  only  paying  part  of  the  prin- 
cipal note  in  cash  and  giving  his  note  for  the  balance  did  not  take 
away  his  right.     Semble,  also,  that  his  right  would  not  be  affected 
«ven  if  the  payment  on  the  collaterals  were  after  his  payment.     Cor- 
nish v.   Niagara  District  Bank,  24  Upper  Canada,  Com.  Pleas  Rpts. 
262. 

3292.  On  a  suit  by  the  government  against  the  sureties  of  a  post- 
master  on    his   official   bond,  it   is   no  defence  that  the  government, 
through  their  agent,  the  Auditor  of  the  Treasury  of  the  Post  Office 
Department  had  full  notice  of  the  defalcation  and  embezzlement  of 
funds  of  the  plaintiff  before  them,  and  yet  neglectfully  permitted  the 
said  postmaster  to  remain  in  office,  whereby  he  was  enabled  to  commit 
all  the  default  and  embezzlement,  etc.     Jones,  et  al.  v.  United  States, 
18  Wall.  U.  S.  662. 

3293.  A   person  in  possession  of  land  who  takes  a  lease  from  an- 
other who  has  bought  and  claims   the  land  leased,  is  estopped  from 
•denying  the  title  of  such  other  person,  or  showing  that  such  person  was 
but  trustee  of  the  land  for  him.     Lucas  v.  Brooks,  18  Wall.  U.  S.  436. 


452  MONROE'S    DIGEST 


TAXATION. 

3294.  A  profit  upon  the  capital  or  investment- of  a  corporation,, 
either  made  or  passed  to  the  stockholders  without  declaration  of  a. 
dividend,  or  a  dividend  declared,  becomes  the  measure  of  a  State  tax  on 
dividends.     If  a  dividend  be  declared,  the  stock  is  taxable  on  the  basis 
of  the  declaration,  and  the  company  is  estopped  by  the  declaration 
whether  the  dividend  be  earned  or  not.     Commonwealth  v.  Pittsburgr 
Fort  Wayne  &  Chicago  Railway  Co.,  74  Penn.  St.  83. 

3295.  Solvent    debts,    promissory  notes  and  mortgages  are  not 
liable  to  taxation.     People  v.   Hibernia  Savings  and  Loan  Society,  51 
Cal.  243 ;  also,  Bank  of  Mendocino  v.  Chalfant,  51  Cal.  369. 

3296.  The  return  of  the  city  tax  assessor,  setting  forth  the  amount- 
of  the  taxable  capital  of  a  banking  corporation,  will  be  held  as  true, 
until  the  contrary  has  been  shown  by  the  bank. 

3297.  When  a  bank  claims  that  a  portion  of  its  capital  is  invested 
in  United  States  bonds,  stocks,  or  currency,  it  must  show  affirmatively 
the  exact  amount  of  its  capital  so  invested.    Otherwise,  its  capital  thus- 
invested  will  not  be  exempt  from  taxation.     The  mere  fact  that  at 
various  periods  during  the  year  the  tax  is  assessed,  the  bank  "  held  'r 
large    amounts    in    United    States    currency,    will    not    exempt   its 
capital  from  taxation  to  the  extent  of  those  amounts,  unless  the  bank 
proves  that  the  currency  so  "  held  "  was  a  part  of  its  capital. 

3298.  While  the  ordinary  deposits  of  United  States  currency  (or 
national  bank  notes),  in  a  bank  by  its  customers,  enter  into,  and  form 
a  part  of  its  assets,  they  at  the  same  time  create  liabilities  of  the 
bank,  and  thus  offset  themselves  as  assets.    Such  deposits,  therefore,  do- 
not  constitute  a  portion  of  the  capital  of  a  bank,  and  hence  the  bank 
cannot  claim  that  its  capital  shall  be  exempt  from  taxation  to  the 
amount  of  such  deposits.     The  capital  of  a  bank  which  is  subject  to- 
taxation,  as  capital,  is  made  up  of  the  balance  of  its  assets  remaining 
after  deducting  the  debts,  that  portion  of  its  assets  exempt  from  tax- 
ation, and  that  portion  which  is  taxed  under  another  name  as  capital. 

3299.  United  States  currency  and  national  bank  notes  belonging 
to  a  bank,  although  non-taxable,  are  a  part  of  its  assets,  and  in  as- 
certaining the  real  amount  of  its  taxable  capital,  such  currency,  and 
notes,  must  be  held  as  compensating  the  debt  due  depositors,  and  thus 
pro  tanto,   extinguishing   the   liability    of   the    bank.     City   of  New 
Orleans  v.  New  Orleans  Canal  &  Banking  Company,  29  La.  851. 

3300.  A  tax  sale  made  on  a  day  other  than  that  provided  by  law 
confers  no  title.     McGehee  v.  Martin,  53  Miss.  519. 

3301.  A  tax  collector's  deed,  which  describes  the  land  conveyed 
as  "  200  acres  in   §  2,  t.  12,  range  1  east,"  is  void,  for  uncertainty  in 
the  description.     Yandell  v.  Pugh,  53  Miss.  295. 

3302.  The   revenue  act  does  not  make  a  corporation  liable  for 
taxes  assessed  on  its  capital  stock,  when  such  capital  is  represented  by 
shares  of  stock  which  are  not  the  property  of  the  corporation.     People 
v.  National  Gold  Bank,  51  Cal.  508. 

3303.  The  relator  was  assessed  for  certain  shares  of  the  capital 
stock  of  a  national  bank  owned  by  him  ;  he  served  upon  the  assessors 
an  affidavit  to  the  effect  that  after  deducting  all  just  debts,  he  had  no 


OF   STANDARD   DECISIONS.  453 

personal  property  liable  to  taxation.  He  appeared  before  the  assessors 
and  was  examined ;  the  examination  disclosed  that  his  indebtedness  ex- 
ceeded the  value  of  his  taxable  personal  property,  including  the  stock. 
A  part  of  the  indebtedness  was  a  promissory  note  of  $25,000  on  de- 
mand, the  proceeds  whereof  were  used  by  him  to  purchase  U.  S.  bonds, 
which  were  pledged  as  collateral  for  the  note.  Held,  that  the  assess- 
ors erred  in  rejecting  the  note  as  an  item  of  indebtedness ;  that  in  the 
absence  of  evidence  that  the  debt  was  not  a  just  one  and  enforceable 
against  the  relator,  he  was  entitled  to  have  it  deducted  ;  and  this,  al- 
though the  transaction  was  "  a  device  to  escape  assessment  and  taxa- 
tion." (1  R.  S.  391,  §  9,  subd.  4;  U.  S.  R.  S.,  §  5219 ;  chap.  596, 
Laws  of  1880.)  People,  ex  rel,  Thurman  v.  Ryan,  88  N.  Y.  142. 

3304.  A  tax  upon  a  corporation  may  be  proportioned  to  the  in- 
•come  received  as  well  as  to  the  value  of  the  franchise  granted  or  the 
property  possessed.      The  Delaware  Railroad   Tax,  18   Wall.   U.   S. 
506. 

3305.  The   fact  that  taxation  increases  the   expenses   attendant 
upon  the  use  or  possession  of  the  thing  taxed,  of  itself  constitutes  no 
objection  to  its  constitutionality.     Ibid. 

3306.  Under  the  Act  of   Congress  of  February  10th,  1868,  and 
the  Act  of  the   Legislature   of  Pennsylvania   of  March   31st,    1870, 
shares  of  national  banks  may  be  valued  for  taxation  for  county,  school, 
municipal  and  local  purposes,  at  an  amount  above  their  par  value. 
Jlepburn  v.  The  School  Directors,  23  Wall.  U.  S.  Reps.  481. 

3307.  The  tax  often  per  centum  imposed  by  the  act  of  July  13th, 
1866,  on  the  notes  of  State  banks  paid  out  after  the  1st  of  August, 
1866,  is  warranted  by  the  constitution.       Veazie  Bank  v.  Fenno,  8 
Wall.  U.  S.  534. 

3308.  The  personal  property  of  an  insolvent  bank  in  the  hands  of 
A   receiver    is   exempt  from  State  taxation.     Rosenblatt  v.  Johnston, 
104  U.  S.  462. 

3309.  National  bank  shares  cannot  be  subjected  to  State  taxation 
'when  a  very  large  party,  relatively  of  other  moneyed  capital  in  the 
hands   of  individual   citizens   in   some   taxing  districts  is  exempted. 
Boyer  v.  Boyer,  113  U.  S.  689. 

3310.  A  statute   exempting   a   corporation  confers  the  privilege 
only  on  the  corporation  especially  referred  to;  not  upon  its  successor, 
unless  that  intent  is  clear.     Morgan  v.  Louisiana,  93  U.  S.  217. 

3311.  Immunity  from  taxation  is  not  such  a  franchise  of  a  corpo- 
ration as  passes  to  a  purchaser  when  property  and  franchise  of  a  rail- 
road are  sold  under  a  decree  to  enforce  a  statutory  lien.     Railroad  Co. 
v.  Hamblen  County,  102  U.  S.  273  ;  also,  Trash  v.  McGuire,  18  Wall. 
U.  S.  391. 

3312.  The    question  of  exemption  from  taxation  of  deposits  in 
savings  banks,  as  affecting  the  rule  for  the  State  taxation  of  national 
bank  shares,  was  very  deliberately  considered  by  this  court  in  Mercan- 
tile Bank  v.  New  York,  121  U.  S.  138  ;  and  the  conclusion  reached  in 
that  case  was  reaffirmed  in  Davenport  Bank  v.  Davenport  Board  of 
Equalization,  123   U.   S.   83  ;  and  it  is  impossible  to  distinguish  this 
<jase  from  those  cases.     Bank  of  Redemption  v.  Boston,  125  U.  S.  60. 

3313.  The  laws  for  the  taxation  of  national  banks  in  Massachusetts, 
3tass.  Pub.  State  C.  13   §§  8,  9,  10,  do  not  deny  to  the  banks,  as  tax- 


454  MONROE'S  DIGEST 

• 

payers,  the  equal  protection  of  the  -laws,  in  violation  of  the  Fourteenth1 
Amendment  to  the  Constitution  of  the  United  States  ;  and  do  not  im- 
pose a  disproportionate  and  unequal  tax  upon  them  in  violation  of  the 
provisions  of  the  constitution  of  that  State.  Ibid. 

3314.  The  effect  of  the  amendment  of  the  Banking  Act  of  1880 
(chap.  567,  Laws  of  1880),  was  to  repeal  the  penalties  imposed  by  the 
amendment  of  1870  (chap.  163,  Laws  of  1870)  upon  banks  taking  un- 
lawful interest.     Nash  v.  White's  Hank,  105  N.  Y.  243. 

3315.  Accordingly  held,  that  as  said  act  of  1880  contains  no  pro- 
vision saving  pending  actions  or  existing  rights  of  action,  an  action 
brought  under  the  act  of  1870  and  pending  at  the  time*  of  the  passage 
of  the  act  of  1880  was  not  maintainable.     Ibid. 

3316.  It  is  the  manifest  intent  of  Rev.  Stat.  §  5219,  to  permit  the 
State  in  which  a  national  bank  is  located  to  tax  all  the  shares  in  its 
capital  stock  without  regard  to  ownership,  subject  only  to  the  limita- 
tions prescribed  in  that  section  ;  and  in  this  case  the  law  permits  the 
taxation  of  the  shares  in  the  bank  of  the  plaintiff  in  error  which  are 
owned  by  other  national  banks,  on  the  same  footing  with  all  other 
shares.      Ibid. 

3317.  The  purchaser  of  property,  sold  for  taxes,  in  accordance 
with  the  provisions  of  law,  holds,  prima  facie,  after  the  delay  for  re- 
deeming has  expired,  ^  valid  title,  and  such  title  cannot  be  disregarded^ 
or  assailed  collaterally,  like  a  simulated  title,  but  must  be  attacked  in 
a  direct  action  to  annul.     Lannes  \.  Workingmerfs  Bank,  et  al.,  29 
La.  112. 

3318.  The  deed  of  a  State  tax  collector  is  not  conclusive  of  the 
legality  of  the  title  conveyed  by  it.     If  such  a  title  is  properly  put  at 
issue,  its  validity  must  be  proved  by  the  party  claiming  under  it. 
State,  ex  rel.,  Louis  Fix  v.  F.  J.  Herron,  Recorder  of  Mortgages,  et  al.r 
29  La.  848. 

3319.  The  power  to  sell  land  for  the  non-payment  of  taxes  is  a 
naked  power,  not  coupled  with  an  interest,  and  in  all  such  cases  every 
prerequisite  to  the  exercise  of  the  power  must  precede  its  exercise.    In 
interpreting  statutes  authorizing  the  sale  of  land  for  non-payment  of 
taxes,  the  title  to  be  acquired  must  be  regarded  as  stricti  juris.     Who- 
ever sets  up  a  tax  title  must  show  that  all  the  requirements  of  the 
law  have  been  complied  with,  unless  the  former  owner  is  the  purchaser. 
Cahoon  v.  Coe,  57  Hall,  N.  H.  556. 

3320.  A  party  who  has  no  title  to  lands,  cannot  acquire  one  by 
mere  payment  of  taxes  on  them.     Homestead  Co.  v.   Valley  Railroad., 
17  Wall.  U.  S.  153. 

3321.  A  party  by  paying  taxes  which  another  party  ought  to  pay, 
but  does  not  pay,  cannot  make  such  second  party  his  debtor  by  having 
stepped  in  and  paid  the  taxes  for  him,  without  being  requested  so  to 
do.     Ibid. 

3322.  It  seems  that  a  foreign  corporation  may  not  be  taxed  here 
either  on  account  of  its  property  situated  out  of  the  State,  its  business 
done  elsewhere,  or  its  corporate  franchise.     People  v.  Equitable  Trust 
Co.,  96  N.  Y.  387. 


OF  STANDARD   DECISIONS.  455 


TENDER. 

3323.  Tender  of  payment  to  one  of  several  creditors  and  a  demand 
from  him  of  an  assignment  of   the  security,  although  the  security 
may  not  be  in  his  possession,  bind,  all  the  obligees,  and  his  refusal  is 
equivalent  to  the  refusal  of  all.     Merriken  v.  Goodwin,  et  al.,  2  Del. 
236. 

3324.  Where  a  debt  is  unliquidated,  the  acceptance  by  the  creditor 
of  money  tendered  by  the  debtor  as  "  in  full  of  all  account,"  precludes 
the  creditor  from  recovering  more.     And  this,  although  the  creditor 
declares  at  the  time  that  he  receives  it  only  to  apply  on  the  debt,  so 
long  as  the  debtor  does  not  assent  to  his  so  receiving  it.      Potter  v. 
Douglass,  44   Conn.  541 ;  Clark  v.  Dinsmore,  5  N.  H.  136  ;  Miller  v. 
Holden,  18  Vt.  340. 

3325.  Where  a  purchaser  of  stock  makes  a  demand  for  the  same, 
and  is  ready  to  pay  the  price,  but  the  seller  refuses  to  comply,  on  the 
ground  of  his  inability   to  deliver  it,  no  further  tender  is  requisite. 
Wheeler  v.   Garcia,  40  N.  Y.  584 ;  Currie  v.  White,  45  N.  Y.  822,  re- 
versing S.  G.,  1  Sw.  166 ;  S.  P.,  Bellinger  v.  Kitts,  6  Barb.  273. 

3326.  The  iudorser  of  a  note,  on  a  tender  of  payment,  may  insist  on 
its  delivery  to  him,  as  a  condition  of  such  payment.      Wilder  \.  Seelye, 
8  Barb.  408. 

3327.  To  constitute  a  tender,  there  must  be  a  production  and 
manual  offer  of  the  money,  unless  dispensed  with  by  some  positive  act 
or  declaration  on  the  part  of  the  creditor.      Bakeman  v.  Pooler,  15 
Wend.   637  ;  Strong  v.  Blake,  46  Barb.  227  ;  see  Holmes  v  Holmes,  12 
Barb.  137;  Bellinger  \.   Kitts,  6   Barb.   273;  Meserole  v.  Archer,  3 
Bos.  376  ;    Vaupell  v.  Woodward,  2  Sand.  Ch.  143. 

3328.  A  tender,  by  the  president  of  a  bank,  in  money  belonging 
to  the  bank,  to  his  private  creditor,  is  not  sufficient ;  inasmuch  as  the 
act  would  be  a  fraud  both  on  the  part  of  the  debtor  and  creditor,  who 
had  notice  of  the  ownership  of  the  funds.     Reed  v.  Bank  of  Newburgh, 
6  Paige,  337. 

3329.  An  offer  in  writing  to  pay  a  debt  when  not  accepted  is  a 
sufficient  tender  of  mone3r  under  the  code,  and  such  tender  will  dis- 
charge a  lien  for  such  defendant,  on  personal  property,  created  by  a 
chattel  mortgage.     Bartel  v.  Lope,  6  Oregon,  321. 

3330.  Tender  of  advances  and  charges  on  goods  to  a  warehouse- 
man is  unnecessary  if  upon  an   offer  to  pay  the  same  he  declines  to 
state  the  amount.     So,  also,  if  he  declines  to  deliver  the  goods  upon 
another   ground,   as   that   his   receipt  for   the   goods  is  outstanding. 
Hanauer  v.  Bartels,  2  Colorado,  514. 

3331.  A  tender  does  not  extinguish  the  right  of  action,  but  only 
precludes  a  claim  for  interest.     Raymond  v.  Bearnard,  12  Johnston, 
274  ;  Kelly  v.  West,  4  J.  &  Sp.  304.     The  only  effect  of  a  tender  after 
judgment  is  to  bar  a  claim  for  damages  or  interest.     Lansing  v.  Loiv, 
5  Cow.  N.  Y.  248. 

3332.  A  mortgage  debtor  must  seek  his  creditor  to  pay  the  inter- 
est on  his  mortgage,  if  he  is  within  the  State,  and  for  this  purpose 
must  go  to  the  residence  or  place  of  business  of  the  mortgagee.     A 
tender  of  interest,  if  not  made  to  the  creditor,  must  be  to  one  author- 


456  MONROE'S  DIGEST 

ized  by  him  to  receive  it.     50  Howard,  N.  Y.  Practice  Reports ;  also, 
55  Howard,  N.  Y.  Practice  Reports,  188. 

3333.  When  the  vendee  of  an  animal,  after  discovering  its  un- 
soundness,  tenders  it  back  to  the  vendor,  who  declines  to  accept  it,  the 
vendee  may  recover  the  expenses  of  keeping  over  such  reasonable  time 
as  will  be  necessary  to  make  a  fair  sale.     Huston  v.  Plato,  3  Colo.  402. 

3334.  In  order  to  constitute  a  legal  tender,  the  money  must  either 
be  produced  and  shown  to  the  creditor,  or  its  production  expressly  or 
impliedly  dispensed  with.     Where,  therefore,  to  prove  a  tender  of  a 
quarter's  rent,  for  which  the  defendant  had  distrained,  the  evidence 
showed  that  the  tenant,  after  refusing  to  pay  some  charges  and  costs 
which  the  landlord  claimed  in  addition  to  the  rent,  said  to  the  landlord 
"  Here  is  the  rent,"  which  he  had,  and  told  the  landlord  he  had,  in  his 
right  hand,  in  a  desk — but  did  not  produce  it  or  show  it  to  the  land- 
lord, who  said  nothing  and  left  the  premises  :     Held,  that  there  was  no 
evidence  of  a  tender,  or  of  a  dispensation  with  a  tender.     Per  Gwynne 
J. — To  divert  a  landlord  of  his  right  to  distrain,  a  strict  legal  tender 
must  be  shown.     Matherson  v.  Kelly,  24  Up.  Canada  Com.  Pleas  Rpts. 
598. 

3335.  The  payee  of  an  ordinary  promissory  note,  which  was  not 
payable  at  bank,  placed  the  same  in  a  sealed  envelope,  with  other 
papers,  and  deposited  the  same  in  a  bank  as  a  "  special  deposit."      By 
inadvertence  the  officers  of  the  bank  took  the  note  out  of  the  package, 
and  notified  the  maker  of  the  time  of  its  maturity,  not,  however, 
claiming  ownership ;  whereupon  the  maker,  at  its  maturity,  tendered 
to  the  cashier  the  amount  due,  which  he  declined  to  receive,  stating 
that  he  was  instructed  not  to  receive  it,  whereupon  the  maker  after- 
ward paid  the  same  to  the  holder,  declining  to  pay  the  interest  after 
maturity.     Held,  in  an  action  on  the  note,  for  such  interest,  that  such 
tender  was  invalid,  and  that  the  maker  was  liable  for  the  interest. 
Held,  also,  that  a  court  of  equity  can  not  supply  a  defect  in  a  tender, 
and  that  it  is  the  duty  of  the  debtor  to  seek  the  creditor,  and  pay  the 
debt,  at  its  maturity.     King  v.  Finch,  60  Ind.  420. 

3336.  It  seems  that  in  an  action  against  a  third  party,  whose  title 
depends  upon  a  contract  claimed  by  plaintiff  to  have  been  rescinded, 
defendant  cannot  set  up  a  want  of  tender  by  plaintiff,  to  the  other 
party  to  the  contract,  of  a  return  of  what  plaintiff  received.     Town 
of  Springport  v.  Teutonia  Savings  Bank,  84  N.  Y.  403. 

3337.  Where  a  tender  has  simply  the  effect  to  extinguish  a  lien 
and  does  not  discharge  the  debt  payment  into  court  is  not  required. 
Cass  v.  Higenbotam,  100  N.  Y.  248. 


TRADE  MARK. 

3338.  A.  C.  &  Co.,  being  the  successors  by  purchase  of  Stillman 
&  Co.,  woollen  manufacturers,  continued  to  use  "  Stillman  &  Co."  as 
trade  mark  on  their  ticket  for  goods.  Latimer,  Stillman  &  Co.,  the 
lessees  of  a  mill  formerly  used  by  Stillman  &  Co.,  known  both  as  the 
"  Stillman  Mill "  and  as  the  "  Seventh  Day  Mill,"  used  "  Stillman's 
Mills"  as  a  trade  mark.  On  a  petition  for  injunction,  brought  by  A. 


OP   STANDARD   DECISIONS.  457 

O.  &  Co.  against  Latimer,  Stillraan  &  Co.,  to  prevent  their  so  using 
the  word  "  Stillman,"  it  appearing  that  no  deception  could  be  charged 
on  either  complainants  or  respondents,  and  that  no  person  of  the  old 
firm  of  Stillman  &  Co.  was  a  member  of  the  firm  of  A.  C.  &  Co. : 
Held,  that  the  injunction  could  not  be  granted.  Held,  further,  that  a 
manufacturer  has  the  right  to  label  his  goods  with  his  own  name  or 
that  of  his  mill,  if  no  fraudulent  purpose  is  intended.  Query:  If  a 
trade  mark  whose  reputation  depends  on  the  excellence  of  the  manu- 
facture, or  the  skill  and  honesty  of  the  manufacturer,  can  be  legally 
assigned  ? 

3339.  If  the  English  practice  of  retaining  a  firm  name,  when  no 
original   partner  remains,  is  generallj7  recognized  in  American  law  ? 

Garmichel  v.  Latimer,  11  R.  I.  395.  See  Motley  v.  Down-man,  3  M.  & 
O.  1  ;  also,  Crawshay  v.  Thompson,  et  al.,  4  M.  &  C.  357. 

3340.  Where  a  manufacturer  has  habitually  stamped  his  goods 
'with  a  particular  mark  or  brand,  a  court  of  equity  will  restrain  an- 
other party  from  adopting  it  for  the  same  kind  of  goods.     McLean  v. 
Fleming,  96  U.  S.  S.  C.  245. 

3341.  An  action  cannot  be  maintained  to  restrain  a  defendant  from 
selling  his  own  goods  in  packages  and  with  labels  he  has  a  legal  right 
to  use,  and  which  do  not  infringe  upon  any  trade  mark  of  the  plaintiff, 
because  of  fraudulent  representations  and  devices  on  the  part  of  de- 
fendant to  palm  off  his  goods  as  those  of  the  plaintiff.     Morgan's  Sons 
Co.  v.  Troxell,  89  N.  Y.  292. 

3342.  Where  a  label  adopted  by  a  merchant  to  designate  goods 
.manufactured  by  him,  and  for  which  he  had  built  up  a  large  trade,  has 
been  simulated  by  another  merchant,  placed  upon  inferior  goods,  and 
put  upon  the  market,  an  action  in  the  nature  of  an  action  for  deceit 
•will  lie,  at  the  suit  of  the  former.     Conrad  v.  Joseph  Uhrig  Brewing 
Co.,  8  Mo.  App.  277. 

3343.  Specific  damages  need  not  be  shown  in  such  a  case,  but  the 
jury  may  assess  such  damages  as  they  may,  on  the  whole  evidence,  be 
satisfied  has  been  sustained.     Ibid. 

3344.  That  the  label  bears  a  name  the  use  of  which  could  not  in 
•equity  be  protected  as  a  trade  mark,  will  not  prevent  a  recovery  where 
the  label  is  imitated  in  size,  shape,  color,  device  and  general  appear- 
ance.    Ibid. 

3345.  Where  the  words  in  a  label  adopted  as  a  trade  mark  are  sub- 
stantially true,  and  contain  nothing  calculated  to  deceive  the  public, 
that  they  are  not  literally  true  will  not  deprive  the  merchant  of  the 
protection  of  the  law.     Ibid. 


TRANSIT!!. 

3346.  A.  sold  goods  to  B.,  to  be  paid  for  upon  their  delivery, 
either  in  cash  or  in  the  notes  of  B.  The  goods  were  shipped  on  a 
vessel  under  a  bill  of  lading,  by  which  they  were  to  be  delivered  to 
B.  on  his  paying  the  freight.  Before  the  vessel  arrived,  B.'s  notes 
were  protested  because  of  his  inability  to  pay  them  in  the  usual  course 
of  business,  and  an  agent  of  A.,  having  heard  that  B.  had  failed,  sent 


458  MONROE'S  DIGEST 

a  person  to  stop  the  goods  in  transitu.  This  person,  whose  acts  were 
subsequently  ratified  by  A.,  before  B.  paid  or  tendered  the  freight,  or 
came  into  possession  of  the  goods,  but  after  they  had  been  attached  by 
a  creditor  of  B.,  demanded  the  goods  of  the  master  of  the  vessel,  and 
forbade  his  delivering  them  to  B.  Held,  that  A.  had  seasonably  exer- 
qised  the  right  of  stopping  the  goods  in  transitu.  Durgy  Cement  & 
Umber  Co.  v.  O'Brien,  123  Mass.  12. 


TRIAL. 

3347.  Where  a  plaintiff  fails  to  prove  the  cause  of  action  set  up- 
in  his  complaint,  and  the  objection  is  raised  upon  the  trial,  and  no- 
amendment  of  the  pleading  is  asked   for  or  ordered,  a  judgment  in 
plaintiff's  favor,  upon  a  cause  of  action  entirely  separate  and  distinct 
from  that  alleged,  cannot  be  sustained  on  appeal.     Southwick  v.  First 
Nat.  Bank,  84  N.  Y.  420. 

3348.  When  it  will  not  be  presumed  even  to  sustain  judgment*, 
that  a  ruling  on  trial  was  made  on  a  purely  technical  ground,  not 
affecting  the  merits.     See  C.  N.  Bank  v.  Phelps.  86  N.  Y.  484. 


TRUSTEE. 

3349.  Promise  by  a  trustee  to  allow  his  personal  debt  as  a  credit 
upon  a  note  held  by  him  as  trustee,  is  not  binding  on  the  trust.. 
Breach  thereof  is  no  defence  to  the  note,  even  though  the  personal  debt 
may  have  become  debarred  by  the  statute  from  delay  to  sue  induced 
by  the  promise.      Vason,  et  al.  v.  Beall,  Trustee,  58  Ga.  500. 

3350.  A  father  made  a  deposit  in  his  own  name  as  trustee  for  his- 
daughter,  and   died.     The  daughter,  while  a  minor,  married,  and  the 
husband  and  minor  wife  preferred  a  petition  for  the  appointment  of  a 
new  trustee.     Held,  that  the  decree   appointing  a  new  trustee  shall 
direct  him  to  pay  the  interest  of  the  deposit  to  the  wife,  but  not  to  pay 
over  any  part  of  the  principal  without  an  order  of  the  court.     O'Brien,, 
Petitioner,  11  R.  I.  419. 

3351.  A  trustee  of  a  fund  for  the  security  of  an  indebtedness  to 
others,  who  as  such  is  plaintiff  in  an  action  to  enforce  such  indebted- 
ness, may  appeal  from  a. judgment  which  reduces  and  limits  the  num- 
ber of  those  who  are  creditors  upon  the  fund  ;  he  is  aggrieved  by  the 
judgment  when  a  real  claim  is  not  added  into  the  amount  adjudged  to 
be  due,  and  a  real  claimant  is  shut  out  by  it  from  a  share  in  the  pro- 
ceeds.    Bockes  v.  Hathorn,  78  N.  Y.  222. 

3352.  The  cashier  of  a  bank  which  is  the  cestui  que  trust  in  a  deed 
of  trust  should  not  act  as  trustee  under  the  deed :  and  where  he  does- 
so,  and  by  improper  statements  deters  others  from  arranging  to  save 
the  property  from  sale,  and  where  the  advertisement  names  an  impossi- 
ble day  for  sale  by  giving  the  wrong  day  of  the  week,  the  owner  of 
the  equity  is  properly  allowed  to  redeem  after  the  sale,  at  which  the 
.bank  becomes  the  purchaser.     Tracker  v.  Tracy,  8  Mo.  App.  315.        * 


OF   STANDARD   DECISIONS.  459 

3353.  Where,  in   an  action  brought  to  obtain  the  construction 
of  a  will  which   created  a  trust,  after  judgment  had  been  entered  de- 
termining the  rights  and  interests  of  the  parties,  P.  purchased  the 
shares  of  some  of  the  defendants  ;  held,  that  the  court  had  jurisdiction 
to  make  him  a  party  to  the  accounting  of  the  trustees,  and  to  compel 
him  to  abide  the  result  of  the  accounting,  and  if  he  had  received  more 
of  the  fund  than  he  was  justly  entitled  to,  the  court  had  power  to  com- 
pel him  to  restore  the  excess  by  order,  without  action  being  brought- 
against  him.     Savage  v.  Sherman,  87  N.  Y.  277. 

3354.  The  directors-of  a  corporation,  if  through  gross  negligence 
and  inattention  to  the.  duties  of  their  trust  they  suffer  the  corporate 
funds  to  be  lost  or  wasted,  are  liable  for  the  loss  so  sustained.     Brink- 
erhoff  v.  Bostwick,  88  N.  Y.  52. 

3355.  No  presumption  of  a  resulting  trust  arises  from  a  wife's- 
possession  of  premises  under  a  voluntary  conveyance  by  her  husband. 
Osborn  v.  Osborn,  29  N.  J.  Eq.  385. 

3356.  A    person  who  acquires  a  legal  title,  with  notice  that  the 
equitable  title  is  in  some  other  person  than  his  grantor,  will  be  decreed 
to  hold  the  legal  title  for  the  benefit  of  the  equitable  owner.     Gale  v. 
Morris,  29  N.  J.  Eq.  222. 

335*7.  A.,  an  habitual  drunkard,  conveyed  lands  to  B.  without- 
consideration,  and  B.  immediately  reconveyed  to  A.,  for  life,  with  re- 
mainder to  his  heirs,  reserving  a  nominal  rent,  which  was  never  in  fact 
paid  or  claimed.  Held,  that  the  two  instruments  must  be  construed 
together  and  that  B.  had  no  beneficial  interest  in  the  lands,  but  merely 
took  the  title  in  trust.  Moore  v.  Carling,  29  N.  J.  Eq.  432. 

3358.  Where  a  trust  fund  has  been  perverted,  the  cestui  que  trust 
can  follow  it  at  law  as  far  as  it  can  be  traced.      United  States  v.  State 
Bank,  96  U.  S.  S.  C.  (Otto)  30. 

3359.  Where  the  holder  of  one  of  several  notes  secured  by  a  trust 
assignment  without  preference  has,  under  a  bill  filed  by  him  against 
the  grantor  and  trustee  alone,  had  the  property  sold  and  the  proceeds- 
applied   to  the  satisfaction  of  his  note,  the  holders  of  the  other  notes 
may,  by  suit  in  this  court,  hold  him  liable  for  their  proportion  of  the 
proceeds.     Smith  v.    Cunningham,  2  Tenn.  Chancery,  565. 

3360.  If  one,  having  an  interest  in  land,  is  induced  to  confide  in  the 
verbal  promise  of  another  that  he  will  purchase  at  sheriff's  sale  for  the 
benefit  of  the  former,  and  in  consequence  is  allowed  to  obtain  legal  title, 
his  denial  of  the  confidence  is  such  fraud  as  will  make  him  a  trustee  ex 
maleficio.      Wolford  v.  Harrington,  74  Penn.  St.  311. 

3361.  Where  a  trustee  is   authorized  to  invest  in  either  of  two 
specified  modes,  and  by  mistake  invests  in  neither,  the  measure  of  his 
ability  is  the  loss  arising  from  his  not  having  invested  in  the  less  bene- 
ficial of  the  authorized  modes.     Patterson  v.  Lailey,  18  Grants  Chan- 
cery, Ontario,  13. 

3362.  The  purchaser  of  property  at  trustee's  sale,  takes  it  subject 
to  incurabrances,  and  is  not  entitled  to  any  abatement  in  the  price  by 
reason  of  such  incumbrances.     Pickett,  et  al.  v.  Merchants'  Nat.  Bank 
of  Memphis,  et  al.,  32  Ark.  346. 

3363.  The  Supreme  Court  has  not  the  power  to  destroy  a  valid 
trust.     Douglas  v.  Cruger,  80  N.  Y.  15. 

3364.  Receiver  of  insolvent  life  insurance  company,  duty  of,  in  dis- 


460  MONROE'S  DIGEST 

t-ribution  of  fund.     See  In  re  Atty.  Geri*l  v.  N.  A.  L.  Ins.  Co.,  85  N. 
Y.485. 

3365.  To  constitute  a  valid  express  trust  it  is  not  necessary  that 
the   purpose  of  the  trust  should  be  stated  in  the  precise  words  of  the 
statute ;  it  is  sufficient  if  the  intention  to  create  the  trust  can  be  fairly 
•collected  from  the  instrument.     Morse  v.    Morse,  b5  N.  Y.  53. 

3366.  An  assignee  of  a  claim  against  a  manufacturing  corporation 
may  maintain  an  action  against  a  trustee  thereof,  to  enforce  the  liability 
for  its  debts  given  by  the  General  Manufacturing  Act  because  of  fail- 
ure to  file  an  annual  report,   or   because   of  signing   a   false   report. 
Pier  v.  George,  86  N.  Y.  613. 

3367.  B.  deposited  in  a  savings  bank  certain  moneys  in  his  own 
name  as  trustee  for  R.    B.  gave  the  bank  book  to  R.,  who  returned  it  to 
B.,  in  whose  control  it  remained.     B.  was  childless,  R.  was  his  step- 
daughter.    It  was  in  evidence  that  B.  was  a  man  of  few  words  and  that 
he  treated  R.  as  his  daughter.     In  an  equity  suit  by  R.  against  the 
administrator   of  B.,  claiming  the  deposit  as  trust  funds  held  by  B. 
for  R.,  Held,  that  the  trust  was  completely  constituted.     Held,  further, 
that  the  trust  being  constituted,  the  fact  that  it  was  voluntary  was  no 
reason  for  refusing  relief. 

3368.  To  constitute  a  trust,  it  is  enough  if  the  owner  of  property 
•conveys  it  to  another  in  trust,  or  if  the  owner  of  personalty  unequivo- 
cally conveys  it  to  another  in  trust,  or  if  the  owner  of  personalty  un- 
equivocally declares,  either  orally  or   in  writing,  that  he  holds  it  in 
prsesenti,  in  trust  for  another.     A  bill  in   equity  to  enforce  a  trust, 
brought  against  an  administrator,  alleged  that  the  respondent  as  ad- 
ministrator withdrew  a  bank  deposit,  being  the  trust  funds  in  question. 
"The  answer  alleged  the  respondent's  appointment  as  administrator  in 
Massachusetts,  and  that  as  such  he  withdrew  the  deposit  and  held  the 
rsame  as  part  of  his  decedent's  estate : 

3369.  Held,  in  the  absence  of  denial  by  the  administrator  that  he 
held  the   deposit   as   administrator   in    Rhode  Island,  that  the  court 
would  presume  he  held  it  as  administrator  in  Rhode  Island,  and  would 
order  him  to  account  directly  with  the  complainant,  the  trust  having 
been  proven.     Ray  v.  Simmons,  11  R.  I.  266 ;  also,  Stone,  et  al.  v.  King, 
.et  al.,  1  R.  I.  358.     It  is  enough  if,  having  the  property,  he  conveys  it 
to  another  in  trust,  or,  the  property  being  personal,  if  he  unequivocally 
declares,  either  orally  or  in  writing,  that  he  hold  it  in  prsesenti  in  trust 
-or  as  a  trustee  for  another.     Ex  parte  Pye,  18  Yes.  Jun.  140  ;  Milroy 
v.   Lord,  4  De  G.  F.   &.  J.  264  ;  Richardson  v.  Richardson,  L.  R.  3 
Eq.   686;  Kekewick  v.   Manning,  1   De  G.   M.  &  G.  176;  Morgan  v. 
Malleson,   L.    R.    10  Eq.    475;  Pen/old   v.    Mould,  L.   R.  4  Eq.  562; 
Wheatley  v.   Parr,  1   Keen.,  551  and  note;  McFadden  v.  Jenkyns,  1 
Hare,  458. 

3370.  The  mere  making  of  a  deed  to  one  as  trustee  does  not  vest 
the  party  with  title  as  trustee,  if  he  never  in  any  form  accepted  the 
trust.     Armstrong  v.  Morrill,  14  Wall.  U.  S.  120. 

3371.  Receiver,  held  properly  chargeable  with  interest  on  trust 
funds  deposited  to  his  private  account  in  bank.     Henckley  v.  Railroad 
Co.,  100  U.  S.  153. 

3372.  Conveyance  of  land  by  deed  absolute,  but  on  parol  condi- 
tions to  pay  grantor's  debts,  except  that  vendee's  liability  on  a  certain 


OF  STANDARD  DECISIONS.  461 

mortgage  should  not  exceed  amount  realized  on  same,  creates  a  trust, 
not  a  mortgage.     Flagg  v.  Walker,  113  U.  S.  650. 

3373.  A  purchaser  by  quit  claim  deed  before  the  maturity  of  the 
purchase  money  notes,  or  of  any  of  them,  will  be  considered  as  holding 
insubordination   to  the  superior  title,  dependent  upon  the  payment  of 
the  purchase  money,  and  not  adversely  to  it.     While  that  relation  ex- 
isted between  the  party   in  possession  and  the  holder  of  the  purchase 
money  notes,  limitation  would  not  run  in  favor  of  such  possession.     A 
sale  by  the  holder  of  such   superior   title    (the    original    vendor)   to 
another,  would  be  a  repudiation  of  such  relation,  and  from  which  limita- 
tion would  run.     Until  such  repudiation  by  one  of  the  parties,  and 
made  known  to  the  others,  limitation  would  not  run  against  the  notesr 
or  by  three,  five  or  ten  years'  possession  of  the  land,  so  as  to  defeat  the 
right   of  the  original  vendor  to  recover  the  land  under  his  superior 
title.     Roosevelt,  et  al.  \,  Davis,  49  Texas,  463. 

3374.  It  is  the  duty  of  a  trustee  for  sale  to  use  all  diligence  to  ob- 
tain the  best  price  ;  and  where  a  trustee  sold  property  at  private  saler 
without  previous   advertisement,  at  a  price  lower  than  other  persons 
were  willing  to  give,  and  did  not  first  communicate  with  these  personsr 
though  informed  of  offers  of  the  higher  price  made  by  them  to  one  of  the 
cestui   que  trust;  the  trustee  was  held  responsible  for  the  loss.     In 
such  a  case  the  absence  of  any  fraudulent  motive  in  the  trustee  is  no- 
defence,   nor   is  evidence  of  witnesses  that  the  property  was  worth  no 
more  than  the  trustee  obtained  for  it.     The  trustee  deposed  that  he 
had  disbelieved  the  statement  of  cestui  que  trust.      Held,  no  excuse 
for  not  testing  the  truth  of  the  statement  by  reference  to  the  parties. 
Graham  v.  Yeomans,  18  Grant's  Chancery,  Ontario,  238. 

3375.  A   trust  fund  is  traceable  into  whatever  character  of  prop- 
erty it  may  be  converted,  and  is  still  impressed  with  the  trust ;  and  the 
confusion  or  mixing  of  the  trust  estate  with  the  trustee's  own  property 
will  not  prevent  the  separation  of  the  former  from  the  latter.     Where 
a  guardian  buys  laud  with  the  funds  of  his  ward,  though  not  under  the 
direction,  or  even  by  authority  of  the  court,  and  takes  the  title  in  his 
own  name,  with  the  addition,  "  trustee,"  he  cannot  as  legal  owner  con- 
vey  to  a  subsequent  purchaser  a  good  title  to  such  land,  "  free  from 
embarrassment  and  reasonable  doubt,"  notwithstanding  the  guardian 
may  also  have  an  individual  interest  in  the  same  ;  but  a  purchaser  with 
notice  would  take  the  title,  subject  to  the  right  of  the  ward  to  pursue 
the  fund  into  the  land  and  hold  it.     Morrison  v.  Kinston,  55  Miss.  71. 

3376.  Where  a  depository  of  certain  government  bonds  used  some 
of  them  without  the  permission  of  the  owner  and  substituted  in  their 
place  a  bond  and  mortgage,  and  the  owner  of  the  bonds  upon  hearing 
of  the  transaction  satisfied  it,  Held,  that  neither  the  creditors  of  the 
depository,  who  had  become  insolvent  when  such  approval  was  made, 
nor  his  trustee  in  bankruptcy,  could  complain  of  the  transaction,  there 
being  no  pretence  that  the  property  substituted  was  less  valuable  than 
that  taken,  or  that  the  estate  of  the  debtor  was  less  available  to  his 
creditors.     Cook  v.  Tullis,  18  Wall.  U.  S.  332. 

3377.  When  property  held  upon  any  trust  to  keep,  or  use,  or  in- 
vest it  in  a  particular  way,  is  misapplied  by  the  trustee  and  converted 
into  different  property,  or  is  sold  and  the  proceeds  are  thus  invested, 
the  property  may  be  followed  wherever  it  can  be  traced  through  ita 


462  MONROE'S  DIGEST 

transformations,  and  will  be  subject,  when  found  in  its  new  form,  to 
the  rights  of  the  original  owner  or  cestui  que  trust.  It  does  not  alter 
the  case  that  the  newly  acquired  property,  instead  of  being  purchased 
with  the  proceeds  of  the  original  property,  is  obtained  by  a  direct  ex- 
change for  it.  Cook  v.  Tullis,  18  Wallace,  U.  S.  332. 

3378.  Plaintiff  and  defendants  McC.  entered  into  a  contract  by 
which  the  former  agreed  to  convey  to  the  latter  seven  lots,  they  giving 
back  their  bond  and  a  mortgage  on  each  lot  for  the  purchase  money. 
The  vendees  agreed  to  erect  a  dwelling  upon  each  lot,  plaintiff  making 
to  them  certain  advances  as  the  work  progressed,  to  be  repaid  out  of 
the  proceeds  of  mortgages  upon  the  lots.  After  the  papers  were  exe- 
cuted and  the  work  of  building  commenced,  the  vendees  negotiated  a 
loan  of  defendant  Gr.,  secured  by  mortgages  upon  four  of  the  lots,  and 
an  agreement  was  made  between  all  the  parties,  to  the  effect,  among 
other  things,  that  a  certain  portion  of  the  moneys  loaned  should  be  de- 
posited in  a  trust  company  "  as  collateral  security  for  the  completion 
of  the  dwelling  houses,"  and  that  said  mortgages  should  have  the 
priority  over  plaintiff's  mortgages  on  said  lots.  The  vendees  failed  to 
perform  their  agreement,  and  after  the  expiration  of  the  time  fixed  for 
performance,  abandoned  the  premises ;  whereupon  plaintiff  went  on 
and  completed  the  buildings.  In  an  action  to  reach  the  trust  funds, 
held,  that  plaintiff's  damages  were  the  difference  between  the  value  of 
the  premises  as  they  were  when  abandoned  by  the  vendees,  and  what 
their  value  would  have  been  had  the  buildings  then  been  completed 
according  to  the  contract ;  and  that  he  was  entitled  to  have  out  of  the 
trust  fund  the  amount  of  the  damages  so  estimated.  Kidd  v.  Me  Cor- 
mick,  83  N.  Y.  391. 


OF   STANDARD   DECISIONS.  463 


USAGES  OF  TRADE. 

3379.  Where  a  party  conversant  with  the  rules  and  usages  of  the 
Chicago  hoard  of  trade  employed  a  commission  merchant  to  make  pur- 
chases of  grain  for  future  delivery  for  him,  and  afterwards  sued  the 
merchant  for  a  loss  incurred  by  the  sale,  which  was  made  for  want  of 
necessary  advances  to  meet  a  decline  in  prices,  it  was  held,  that  proof 
of  the  usages  of  the  board  of  trade  was  properly  admitted  to  justify 
the  act  of  the  defendant.  Corbett  v.  Underwood,  83  111.  324. 


USURY. 

3380.  A  note  and  mortgage  executed  to  secure  a  loan  of  gold  at  a 
higher  rate  of  premium  than  the  market  value  of  the  gold  are  usurious. 
Defendant  was  desirous  of  negotiating  a  loan  from  plaintiff,  and  on 
that  day  he  procured  from  plaintiff  $1,700  in  gold  coin,  and  executed 
his  note  therefor  for  $2,000  payable  in  one  }rear,  with  interest  at  ten 
per  cent.     At  the  time  the  premium  upon  gold  was  from  3|  to  10  per 
cent.     The  defendant  testified  that  he  was  to  allow  10  per  cent,  premium 
upon  the  gold,  and  was  to  pay  15  per  cent,  interest  for  the  use  of  the 
money ;  that  the  10  per  cent,  premium  and  5  per  cent,  interest  were 
taken  out  of  the  sum  called  for  upon  the  face  of  the  note,  and  that  the 
arrangement  was  made  as  a  cover  for  usury.     Austin  v.  Walker,  45 
Iowa,  527.     It  was  said  "  The  form  of  the  transaction  is  nothing,  the 
cardinal  inquiry  being,  when  the  contract  specifying  the  amount  re- 
served is  express,  did  the  parties  resort  to  it  as  the  means  of  disguising 
the  usury,  in  violation  of  the  laws  of  the  State  where  the  contract  was 
made  or  to  be  executed?"     And,  in  arriving  at  this  intention,  all  the 
facts  are  to  be  taken  in  consideration.     Arnold  v.  Potter,  22  Iowa,  194. 

3381.  A    surety  cannot  avail  himself  of  usury  paid  by  his  prin- 
cipal.    Lamoille  County  National  Bank  v.  Bingham,  50  Vt.  105. 

3382.  Although  the  code  provides  the  mode  and  manner  in  which 
a  defendant  may  plead  usury,  its  provisions  do  not  in  any  manner  de- 
prive a  party  of  existing  remedies  for  relief  against  the  payment  of 
illegal  interest,  even  though  he  may  have  failed  to  avail  himself  of  the 
plea.      Such  being  the  law,  there  is  no  reason  why  a  part}1  may  not  ac- 
cept to  the  confirmation  of  an  award  on  the  ground  of  usury,  even 
though   no  such  defence  was  made  before  the  arbitration.     Woods  v. 
Match  ett,  47  Md.  390. 

3383.  Appeal  from  the  Circuit  Court  for  Carroll  county,  in  equity. 
On  a  bill  filed  to  restrain  the  execution  of  a  judgment  of  fraud,  it  was 
held:   1st.  That  the  complainant  had  not  made  out  a  case  entitling 
him  to  have  the  judgment  set  aside.     2d.  That  inasmuch  as  there  ap- 
peared to  have  been  usurious  charges  against  him  in  the  transaction 
between  him  and  the  defendants,  he  was  entitled  to  have 'the  judgment 
reduced  to  the  sum  found  to  be  due  by  charging  him  with  the  net 
amount  loaned  him,  and  the  average  interest  thereon,  and  allowing 
him  for  the  amount  of  credits  to  which  he  was  entitled,  including 
bonus  and  interest  on  bonus.     3d.  That  although  it  was  quite  probable 


464  MONROE'S  DIGEST 

that  this  method  did  not  ascertain  the  precise  amount  of  usury  paid  by 
the  complainant,  yet  no  more  could  be  allowed  him,  as  there  was  nc* 
proof  in  the  record  to  justify  the  court  in  allowing  any  more,  owing  to- 
the  defective  manner  in  which  the  complainant  had  kept  his  accounts,, 
and  his  own  forgetfulness  of  matters  material  to  their  elucidation. 
Hill  v.  Reifsnider,  et  al.,  46  Md.  555. 

3384.  The  taking  of  a  premium  upon  making  a  loan  or  advance 
upon  the  shares  of  a  member  is  authorized  by  the  statute  (§  7)  and 
does  not  render  the  loan  usurious.     Con.  S.  &  A.  Ass'n  v.  Bead.  93 
N.  Y.  474. 

3385.  In  computing  the  interest  as  the  trial  court  found  "  by  in- 
advertence and  mistake  in  the  computation  of  time,  and  not  with  the 
purpose  and  intention  of  evading  the  statute  against  usurjr,or  in  viola- 
tion thereof,"  the  lender  retained  interest  for  twenty  days  too  much. 
Held,  that  this  was  not  usury  ;  and  that  the  court,  in  an  action  to  fore- 
close the  mortgage,  properly  applied  the  excess  in  diminution  of  the 
sum  secured.     Bevier  v.  Covell,  87  N.  Y.  50. 

3386.  The  statute  of  this  State  regulating  the  rate  of  interest  is 
merely  a  penal  law  and  has  no  extra-territorial  force.      West  T.  &  G. 
Co.  v.  Kliderhouse,  87  N.  Y.  430. 

3387.  Certain  notes  had  been  given  by  defendant  to  R.,  plaintiffs- 
assignor,  which  were  usurious;  a  judgment  for  the  full  amount  of  the 
note  was  entered,  and  the  bond  in  suit  was  given,  in  pursuance  of  an. 
agreement,  made  to  evade  the  statute  against  usury,  between  R.  and 
defendant,  that  the  latter  should  allow  such  judgment  to  be  entered, 
and  should  then  give  the  bond  in  satisfaction  thereof.     Held,  that  the 
judgment  was  not  a  bar  to  the  defence  of  usury.     Moses  v.  McDimtt, 
88  N.  Y.  62. 

3388.  An  allegation  in  answer  that  the  complainants,  as  executors, 
received  a  certain  amount  usuriously,is  not  sustained  by  proof  that  one 
of  them  individually  received  a  part  of  such  sum  from  defendant's 
agent.     Cleveland  v.  O'Neil,  29  N.  J.  457. 

3389.  Suit  by  a  national  bank  upon  a  bill  of  exchange;  defence, 
usury.     The  bank,  in  discounting  the  bill,  reserved  a  greater  amount 
than  was  allowed  for  interest  by  the  law  of  the   State  where  it  was 
situated.     There  was  no  proof  of  the  current  rate  of  exchange.     Held, 
that  the  bank  was  entitled  to  recover.      Wheeler  v.  National  Bank,  96 
U.  S.  268. 

3390.  As  a  general  rule,  in  setting  up  the  defence  of  usury,  the 
usurious  contract  must  be  described  with  precision  and  accuracy,  and 
proved  as  laid.     Cox  v.  Westcoat,  29  N.  J.  551. 

3391.  But  when  the  complainant  voluntarily  confesses  the  taking 
of  usury,  and  there  is  a  variance  between  the  contract  alleged  and  that 
proved,  the  court,  in  order  to  give  the  defendant  the  benefit  of  facts 
admitted,  will  direct  an  amendment  of  the  answer.     Cox  v.  Westcoat, 
29  N.  J.  551. 

3392.  Under  our  former  statute,  usury  was  a  cause  of  forfeiture 
of  all  interest,  and  a  promise  to  pay  usury  was  not  a  sufficient  consid- 
eration for  a  promise  to  forbear.     Roberts  v.  Stewart,  31  Miss.  664. 
But  under  our  present  statute,  usury  forfeits  only  the  illegal  excess, 
and  the  right  to  get  interest  for  a  given  time  is  a  valuable  considera- 
tion to  uphold  a  promise  to  forbear,  and  the  illegal  excess  is  appropri- 

V 


OF   STANDARD   DECISIONS.  465 

able  in  legal  contemplation  to  the  discharge  pro  tanto  of  principal. 
Brown  v.  Prophit,  53  Miss.  649. 

3393.  Where  a  sale  is  made  under  a  mortgage,  whether  the  con- 
tract was  usurious  or  not  is  immaterial  as  an  inquiry  as  to  the  validity 
of  the  sale;  usury  affects  only  the  distribution  of  the  proceeds,  not  the 
sale  itself.     If  more  than  legal  interest  has  been  extorted  by  the  mort- 
gagee, the  court,  in  distributing  the  proceeds,  may  direct  it  to  be  with- 
held or  refused.     Carroll  v.  Kershner,  47  Md.  262. 

3394.  Defendant  indorsed  certain  notes  for  the  accommodation  of 
D.,  which  were  discounted  by  plaintiff.     In  an  action  upon  the  indorse- 
ments defendant  offered  to  show  that  plaintiff  in  its  dealings  with  D. 
took  upon  discounts  made  for  him  more  than  lawful  interest.     Held, 
that  as  the  offer  embraced  transactions  with  which  defendant  was  not 
connected,  it  was  too  broad,  and  so  was  properly  rejected.     First  Nat. 
Bank  v.   Wood,  71  N.  Y.  405. 

3395.  It  will  not  be  presumed  that  a  note  dated  on  one  day  for  a 
sum  payable  with  interest  from  a  day  previous,  was  for  money  first 
lent  on  the  day  of  the  date.     Ewing  v.  Howard,  7  Wall.  U.  S.  499. 

3396.  When  an  agreement  is  entered  into  between  a  factor  and  a 
holder  of  produce  for  an  advance  of  money  on  the  produce  as  part  of 
an  entire  contract,  embracing  the  storage,  safe  keeping  and  sale  of  the 
produce,  and  the  compensation  stipulated  is  greater  than  the  legal  rate 
of  interest  on  the  advance,  it  is  a  question  of  fact  whether  usury  was 
intended,  and  if  relief  is  sought  on  the  ground  of  usury  the  fact  must 
be  averred  in  the  bill  and  established  by  proof.     Thus,  where  the  com- 
plainants, as  manufacturers  of  whisky,  made  a  contract  with  the  de- 
fendants, factors  and  commission   merchants,  for  the  storage  of  their 
whisky  and  an  advance  of  money  thereon,  upon  certain  terms  and  con- 
ditions, the  commission  and  charges  agreed  to  be  paid  being  more  than 
the  legal  rate  of  interest  on  the  advances,  it  was  held,  upon  a  bill  filed 
stating  a  contract  which  was  not  usurious  and  not  established  by  proof, 
that  the  complainants  were  not  entitled  to  relief,  although  the  agree- 
ment proved  was  for  a  rate  of  compensation  greater  than  legal  inter- 
est on  the  money  advanced.     Stark  v.  Sperry,  2  Tenn.  Eq.  304. 

3397.  Hartman  lent  money  to  Duphorn  for  a  year  at  8  per  cent., 
on  a  note,  stated  to  be  at  6  per  cent.,  with  Banner  as  surety ;  about 
maturity  Hartman  agreed  to  an   extension  for  a  year,  upon  Duphorn 
paying  2  per  cent,  usury,  and  in  the  same  way  for  a  third  year.     The 
usury  was  paid  after  the  maturity  of  the  note.     Danner  had  no  knowl- 
edge of  the  usury  or  the  extensions.     Held,  that  the  contract  for  usury 
being  illegal,  it  was  without  consideration,  and  therefore  not  binding 
on  Hartman,  and  he  could  recover  from  Danner  notwithstanding  the 
giving  of  time.     The  payment  of  the  usury  after  maturity  of  the  note 
was  a  payment  on  account,  which  the  debtor  was  under  obligation  to 
make,  and  therefore  no  advantage  to  one,  or  disadvantage  to  the  other, 
so  as  to  create  consideration.     Hartman  v.  Danner,  74  Penn.  St.  36. 

3398.  If  an  usurious  contract  is  made,  whether  expressed  or  im- 
plied, at  the  time  of,  or  subsequent  to  the  entering  into  of  the  agree- 
ment, to  take  or  reserve  more  than  lawful  interest,  it  is  such  an  agree- 
ment as  falls  within  the  prohibition  of  the  statute.     Peddicord,  et  al. 
v.  Connard,  85  111.  102. 

3399.  If,  where  a  party  overdraws  his  account  with  a  bank,  the 
30 


466  MONROE'S  DIGEST 

.bank,  at  the  end  of  each  sixty  days,  compounds  the  interest  on  the 
sums  overdrawn,  so  as  to  make  it  the  same  as  in  discounting  a  loan, 
and  the  same  is  included  in  a  note,  the  transaction  will  be  tainted  with 
usury,  which  may  be  set  up  in  defence  to  a  suit  on  the  note,  and  no  in- 
terest will  be  allowed  on  the  sums  overdrawn,  either  on  the  amount  or 
the  note.  Ibid. 

3400.  The  fact  that  a  debtor  voluntarily  paid  more  than  six  per 
cent,  interest,  and  made  a  settlement  on  that  basis,  does  not  preclude 
him  from  setting  up  a  defence  of  usury  to  an  action  brought  to  enforce 
such  settlement.     Marr  v.  Marr,  110  Penn.  60. 

3401.  When  the  consideration  of  a  confessed  judgment  is  made 
nip  in  part  of  usury  the  court  will  open  the  judgment  and  afford  relief. 
Ibid. 

3402.  Where  a  party  having  an  account  in  bank,  which  he  over- 
draws from  time  to  time,  makes  a  settlement  with  the  bank  by  having 
Ms  bank  book  written   up  and  his  checks  surrendered,  and  he  paying 
the  charges  made  against  him,  he  cannot,  after  a  considerable  lapse  of 
time,  open  such  settlement  to  .recover  unlawful  interest  charged  to  him 
•on  the  sums  overdrawn.     Ibid.     102. 

3403.  In  a  suit  upon  a  note  the  defendant,  in  her  affidavit  of  de- 
fence, averred  that  the  loan  for  which  the  note  was  given  had  been  car- 
ried by  her  father  for  two  years,  at  ten  per  cent,  interest,  and  that  the 
note  signed  by  her  was  the  renewal  of  one  which  was  the  last  of  a 
series   given   by   him.     The   court   below   entered  judgment   for   the 
amount  of  the  note,  and  only  abated  the  excess  of  interest  for  the  four 
months  which  defendant's  note  had  run  :     Held  (reversing  the  court 
below),  that  she  had  the  right  to  set  up  also  the  excess  of  interest  paid 
by  her  father  against  the  plaintiffs  claim.     Miller  v.  Irwin,  85  Penn. 
376. 

3404.  In  April,  1870,  the  plaintiff  executed  four  promissory  notes, 
payable  in  one  year,  with  interest  at  ten  per  cent.,  which  were  secured 
by  mortgage  on   real  estate.     After  the  maturity  of  the  notes  the 
plaintiff  indorsed  thereon  the  following  promise :     "  For  value  received 
I  promise  to  pay  twelve  per  cent,  per  annum  from  maturity  until  paid. 
Signed.     T.  W.  T.  R.,  Nov.  29,  1871."     Held,  that  the  notes  were  not 
affected  with  usury.     The  promise  indorsed  on  the  notes  by  the  plain- 
tiff is  utterly  void,  and  cannot  modify  or  impair  the  original  contract. 
If  the  original  contract  is  bonafide,  and  wholly  free  from  the  taint  of 
usury,  then  no  subsequent  agreement  to  pay  usury,  or  an  usurious  pre- 
mium upon  the  debt,  will  invalidate  the  original  contract  with  the  vice 
of  usury,   or   prevent   a  collection  of  the  debt  with  legal   interest. 
jRichards  v.  Hountze,  4  Neb.  206. 

3405.  Usury  is  the  charging  of  unlawful  interest,  and  unless  there 
is  a  law  which  limits  the  rate  of  interest  to  be  charged  for  the  use  of 
money,  there  can  be  no  usury.     Newton  v.  Wilson,  et  al.,  31  Ark.  484. 

3406.  It  is  sufficient  to  sustain  the  defence  of  usury  if  the  weight 
of  evidence  be  in  its  favor.     Chew  v.  Ferrari,  29  N.  J.  Eq.  380. 

3407.  If  a  bond  be  not  usurious  by  the  law  of  the  place  where 
payable,  a  plea  of  usury  cannot  be  sustained  in  an  action  thereon,  un- 
less it  alleges  that  the  place  of  payment  was  inserted  as  a  shift  or  de- 
viVe  to  evade  the  law  of  the  place  where  the  bond  was  made.     Railroad 
Co.  v.  Bank  of  Ashland,  12  Wall.  U.  S.  226. 


OF   STANDARD   DECISIONS.  467 

3408.  The  assignment  merely  of  an  expected  surplus  in  property 
pledged  to  secure  an  usurious  loan  does  not  entitle  the  assignee  to 
avoid   the   lien   or   to  claim  the  property  free  therefrom.     Dalton  v. 
Smith,  86  N.  Y.  176. 

3409.  Plaintiff's  complaint  alleged   among  other  things,  and  his 
proof  tended  to  show,  that  as  security  for  a  loan  of  $2,000,  he  assigned 
a  $4,000  bond  and  mortgage  under  an  usurious  agreement  to  the  effect 
that  the  defendants  should  retain  the  interest  on  the  $4,000  ;  and  when 
the  full  amount  of  the  bond  was  paid  should  pay  the  plaintiff  $2,000. 
Defendants  foreclosed  the  mortgage,  bid  in  the  mortgaged  premises  for 
32,000,  and  subsequently  sold  them  for  $5,000.     The  court  charged  in 
substance  that  if  the  jury  should  find  that  the  transaction  was  a  loan 
and  this  was  usurious,  the  plaintiff  was  entitled  to  recover  the  value 
of  the  property  at  the  time  of  the  assignment  of  the  mortgage,  over 
the  $2,000  loaned  and  interest.     Defendants'  counsel  excepted  and  re- 
quested the  court  to  charge  that  if  plaintiff  was  entitled  to  recover  at 
all  on  account  of  an  usurious  loan,  he  was  entitled  to  the  whole  value 
of  the  property  without  any  deduction  for  the  loan  ;  this  request  was 
refused.     Held,  that  the  rule  as  presented  in  the  request  was  correct, 
but  that  as  the  error  was  in  defendants1  favor,  they  could  not  com- 
plain ;  that  it  was  not  a  legitimate  presumption  that  the  jury  were 
governed  in  their  findings  of  facts  by  the  amount  of  their  verdict. 
Dalian  v.  Smith,  86  N.  Y.  176. 

3410.  To  constitute  usury  it  must  be  shown  that  the  additional 
interest  was  paid  or  retained   in  pursuance  of  a  mutual  agreement. 
Morton  v.  Thurber,  85  N.  Y.  550. 

3411.  Where  an  agreement  was  made  to  loan  money  at  lawful  in- 
terest, but  at  the  time  of  executing  the  securities  the  lender  required 
and  the  borrower  assented  to  the  allowance  of  a  sum  falsely  repre- 
sented by  the  former  to  have  been  an  expense  incurred  in  procuring 
the  money,  held,  that  this  was  not  usury.     Morton  v.  Thurber,  85  N. 
Y.  550. 

3412.  In  the  securities  given  for  the  loan  was  included  the  amount 
of  a  former  loan.     The  only  usury  alleged  was  the  charge  and  allow- 
ance of  said  item  of  expense.     The  facts  in  relation  to  the  former  loan 
•were  proved,  but  there  was  no  finding,  or  request  to  find,  that  the 
agreement  therefor  was  usurious.     Held,  that  the  question  could  not 
be  raised  here.     Morton  v.  Thurber,  85  N.  Y.  550. 

3413.  Where    a  party  executes  his  note  for  money  loaned  him, 
bearing  him  ten  per  cent,  interest,  with  a  provision  that  if  the  same  is 
not  paid  within  ten  days  after  maturity,  interest  shall  afterwards  be 
paid  at  the  rate  of  twenty  per  cent.,  as  liquidated  damages,  there  will 
be  no  error  in  allowing  such  rate  in  accordance  with  the  contract, 
•especially  where  usury  is  not  pleaded.    Walker,  et  al.  v.  Abt.,  et  al.,  83 
111.  226. 

3414.  On  petition  for  foreclosure,  brought  by  the  purchaser  of  the 
mortgage  notes  against  the  purchaser  of  the  equity  of  redemption,  the 
•defendant  sought  to  abate  the  claim  by  showing  that  the  notes  were 
given  in  part  for  usurious  interest.     Held,  that  the  right  so  to  do  was 
personal  to  the  maker  of  the  notes,  the  same  as  the  right  to  recover 
money  paid  for  usury  is  personal  to  the  payer.     Heed  v.  Eastman,  50 
Tt.  67. 


468  MONROE'S  DIGEST 

3415.  If  a  party  loans  money,  and  at  the  same  time  sells  lots  to 
the  borrower  at  a  fictitious  value,  taking  a  note  for  the  whole,  merely 
to  secure  an  unlawful  rate  of  interest  on  the  loan,  the  transaction  will 
be  usurious.     But  the  fact  that  a  party  sells  property  and  loans  the 
consideration  to  the  purchaser,  with  other  funds,  affords  no  presump- 
tion the  transaction  is  usurious.     Mosrier  v.  Norton,  et  aL,  83  111.  519. 

3416.  The  defence  of  usury  is  regarded  as  in  the  nature  of  a  penal, 
action,  and  not  only  is  great  strictness  required  in  the  pleadings,  but- 
the  contract  must  be  proved  as  alleged  by  a  clear  preponderance  of  the 
evidence.     Ibid. 

3417.  No  one  but   the  person  paying  usur}7  can  recover  it  back. 
Thus,  an  accommodation  maker  of  a  promissory  note  cannot  avail  him- 
self in  a  suit  upon  the  note  he  has  so  given,  of  a  payment  of  usury 
thereon  by  the  party  accommodated.     Aliter  of  interest  paid  by  such 
party.     Cady  v.  Goodnow,  49  Rowell,  Vt.  400. 

3418.  Purchaser  of  mortgaged  property,  who  paid  full  price  for 
same,  may  set  up  usury  in  mortgage,  though  it  had  been  foreclosedr 
and  the  usurious  interest  paid,  before  his  purchase.      Lilienthal  v. 
Champion,  et  al.,  58  Ga.  158. 

3419.  Interest  in  excess  of  six,  but  not  exceeding  ten,  per  cent, 
per  annum,  voluntarily  paid  for  the  use  of  money,  cannot  be  recouped,, 
though  no  agreement  in  writing  was  made  for  its  payment.     Reynolds 
v.  Rondabush,  59  Ind.  483. 

3420.  By  the  act  of  March  9, 1867  (1  R.  S.  1876,  599),  concerning 
interest  on  money  and  the  recoupment  of  usury,  so  much  of  section  5  of 
the  act  of  March  7,  1861  (1  R.  S.  1876,  599),  on  the  same  subject,  as 
amended  by  the  act  of  December   19,  1865  (3  Ind.  Stat.  316),  as  pro- 
hibited the  recoupment  of  usury,  was  repealed,  but  that  part  of  such 
section  prohibiting  a  direct  action  therefor  is  still  in  force.    -Holcraft 
v.  Mellott,  57  Ind.   539.     Where,  in  an  action  on  a  promissory  note 
wherein  the  defendant  answers,  seeking  to  recoup  usurious  interest,  al- 
leged to  have  been  paid,  the  plaintiff  dismisses  his  complaint,  such  dis- 
missal carries  all  the  pleadings  out  of  court,  and  the  defendant  cannot 
prove  or  recover  such  usury.     Ibid. 

3421.  Recoupment  of  usurious  interest,  alleged  to  have  been  paid 
on  a  promissory  note  in  suit,  can  be  had  only  to  the  extent  of  any 
balance  due  on  such  note,  and  judgment  for  any  excess  of  such  usury 
can  be  rendered.     Ibid. 

3422.  In  recoupment  the  defendant  can  only  use  his  claim   in 
dimin ution  or  abatement  of  the  plaintiff 's  cause  of  action,  and  cannot,  as 
in  set-off,  recover  for  the  excess  of  his  claim  over  that  of  the  plaintiff. 
Ibid. 

3423.  The  taint  of  usury  cannot  be  eradicated  by  the  substitution 
of  one  security,  or  one  set  of  securities,  for  another,  so  long  as  the 
original  debt  survives.     Miller  v.  Irwin,  85  Penn.  376. 

3424.  Usurious  brokerage  taken  by  a  third  person,  whether  an 
agent  of  the  mortgagee  or  not,  if  taken  without  his  knowledge  or  con- 
sent, will  not  taint  the  mortgage.     The  rule  that  such  brokerage,  to  be 
valid,  must  be  taken  by  virtue  of  an  independent  agreement  between 
the  borrower  and  the  broker,  not  approved.     Gray  v.  Blarcom,  29  N. 
J.  454. 

3425.  Where  usurious  interest  is  reserved  or  charged  on  a  note  or 


OF   STANDARD  DECISIONS.  469 

1)111  discounted  by  a  national  bank,  the  entire  interest  reserved  or 
-charged  will,  in  an  action  on  the  note  or  bill,  be  adjudged  forfeited.  The 
action  authorized  by  section  30  of  the. national  Banking  Act  of  1864,  to 
recover  from  the  bank  twice  the  amount  of  usurious  interest  paid,  was 
within  the  jurisdiction  of  the  State  courts.  Hade  v.  McVay,  Allison 
4e  Co.,  31  Ohio  (DeWitt)  231. 

3426.  To  render  a  transaction  usurious,  there  must  be  an  unlaw- 
ful or  corrupt  intent,  confessed  or  proved.  Nourse  v.  Prime,  7  Johns. 
Ch.  69  ;  Woodruff  v.  Hurson,  32  Barb.  557. 

342*7.  Taking  more  than  legal  interest  by  mistake  is'not  usury. 
Marvin  v.  Hymers,  12  N.  Y.  223  ;  Mosher  v.  Randall,  52  N.  Y.  649  ; 
Bailey  v.  Lane,  21  How.  Pr.  475. 

3428.  If  the  plaintiff's  principal  and  interest  are  both  put  at 
hazard,  the  contract  is  not  usurious,  however  hard  and  unconscionable 
the  bargain.    Cummings  v.  Williams,  4  Wend.  679  ;  Spencer  v.  Tilden, 
5  Cow.  144;  Holmes  v.  Wetmore,  5  Cow.  149;  Pomeroy  v.  Ainsworth, 
22  Barb.  118. 

3429.  A  contract  is  not   usurious,  if  it  depend  on  contingencies, 
whether,  on  return  of  the  property,  the  lender  will  have  received  more 
than  its  value  at  the  time  of  making  the  contract,  and  legal  interest 
thereon.     Hall  v.  Haggart,  1 7  Wend.  280. 

3430.  Where  one  man  advances  money  to  purchase  lands  for  the 
benefit  of  himself  and  others,  to  be  refunded  with  interest,  out  of  the 
proceeds  only,  a  stipulation  that  he  shall  receive  more  than  an  equal 
proportion  of  the  lands,  in  consideration  of  such  advance,  is  not  usuri- 
ous.    Queckenbush  v.  Leonard,  9  Paige,  334. 

3431.  A  loan  of  money  upon  condition  that  the  borrower  would 
sell  to  the  lender  real  estate  of  a  speculative  character,  to  the  amount 
•of  the  loan,  at  its  then  market  value,  is  not  usurious,  though  both 
parties  expected  it  would  greatly  increase  in  price.    Fellows  v.  Ameri- 
can Life  Ins.  &  Trust  Co.,  1  Sand.  Ch.  203. 

3432.  The  usual  rule  for  the  construction  of  pleadings  applies  as 
well  to  an  answer  of  usury  as  to  one  setting  up  any  other  defence. 
Lewis  v.  Barton,  106  N.  Y.  70. 

3433.  There  can  be  no  usury  on  a  loan  of  chattels,  whatever  the 
percentage  upon  their  value  agreed  to  be  paid  for  their  use,  unless  in- 
tended as  an  indirect  loan  of  money.     Bull  v.  Eice,  5  N.  Y.  315. 

3434.  A  loan,  secured  by  a  pledge  of  stock,  under  an  agreement 
that  the  lender  shall  have  the  benefit  of  their  rise  in  value,  is  usurious. 
•Cleveland  v.  Loder,  7  Paige,  557. 

3435.  If  the  purchaser  of  land,  who  has  paid  a  considerable  por- 
tion of  the  purchase  money,  be  unable  to  pay  the  balance  on  the  day 
fixed,  and  the  fiction  of  a  re-sale  be  resorted  to,  as  a  cover  for  usury, 
the  second  contract  is   void,  but  the  balance  of  the  original  purchase 
money  is  recoverable.     Crippen  v.  Heermance,  9  Paige,  211. 

3436.  If  the  vendor  of  land  agree  to  sell  for  $10,000  in  cash,  but 
the  vendee  being  unable  to  pay  cash,  it  is  agreed  that  a  deed  and  bond 
And  mortgage  for  $12,000,  payable  at  a  future  time,  with  interest,  shall 
be  executed,  to  remain  in  the  vendor's  hands,  until  he  can  dispose  of 
the  bond  and  mortgage  for  $10,000,  which  is  done;  the  transaction  is 
not  usurious.     Brooks  v.  Avery,  4  N.  Y.  225. 

3437.  A  usurious  loan  on  a  contract  to  procure  the  assignment  of 


470  MONROE'S  DIGEST 

choses  in  action,  at  a  future  day,  which  have  then  no  existence,  and.the- 
loan  being  ultimately  secured  by  the  notes  of  the  borrower,  is  void. 
Seymour  v.  Strong,  4  Hill,  255  ;  Rapelye  v.  Anderson,  4  Hill,  472. 

3438.  A  loan  made  by  an  insurance  company,  on  condition  that 
the  borrower  will  effect  an  insurance  with  them,  on  the  ordinary  terms, 
is  not  usurious.      Utica  Ins.  Co.  v.  Cadwell,  3  Wend.  296 ;  New  York 
Fire  Ins.  Co.  v.  Donaldson,  3  Edw.  Ch.  199. 

3439.  A  loan-corn  pan}',  authorized  to  loan  money  on  pledge,  and 
to  charge  interest  for  a  full  month,  where  the  loan  is  for  a  period  of 
over  fifteen  days  and  less  than  one  month,  is  not  entitled,  where  a  loan 
made  for  twenty  days  remains  unpaid,  to  demand  interest  at  the  same 
rate  for  any  subsequent  time.     Macomber  v.  Dunham,  8  Wend.  550. 

3440.  Giving  a  note  for  a  larger  sum  than  the  party  discounting  it- 
expected  to  advance,  with  an  agreement  that  it  shall  be  negotiated 
only  for  the  amount  advanced,  is  not  usurious.     Schoop  v.  Clarice,  1 
Keyes,  181;  S.  C.,  4  Abb.  Dec.  235. 

3441.  The  reservation  of  interest,  payable  quarterly,  upon  a  suia 
payable  at  a  future  day,  is  not  usurious.    Mowry  v.  Bishop,  5  Paige,  98. 

3442.  Suit  by  a  national  bank  upon  a  bill  of  exchange  ;  defence,, 
usury.     The  bank,  in  discounting  the  bill,  reserved  a  greater  amount 
than  was  allowed  for  interest  by  the  law  of  the  State  where  it  was 
situated.     There  was  no  proof  of  the  current  rate  of  exchange.     Heldr 
that  the  bunk  was  entitled  to  recover.      Wheeler  v.  National  Bank,  96 
U.  S.  S.  C.  268. 

3443.  A  bona  fide  contract  for  the  delivery  of  personal  chattels 
cannot  be  usurious.     Stockwell  v.  Holmes,  33  N.  Y.  53. 

3444.  A  note  with  interest  from  a  da}r  past,  is  not  usurious  on  its 
face.     Marvin  v.  Feeler,  8  Wend.  533  ;  Lynde  v.  Staats,  1  N.  Y.  Leg. 
Obs.  89. 

3445.  The  original  taint  of  usury  attaches  to  all  consecutive  ob- 
ligations and  securities  growing  out  of  the  original  vicious  transaction. 

Vickery  v.  Dickson,  35  Barb.  96  ;  S.  C.,  62  Barb.  272  ;  Stanley  v. 
Whitney,  47  Barb.  586. 

3446.  Discounting  a  note  on  the  theory  that  360  days  make  a 
year,  though  the  practice  be  universal,  is  usurious.     Payment  and  re- 
ceipt of  usurious  interest  is  prima  facie  evidence  of  a  corrupt  agree- 
ment.    New  York   Farmers1   Ins.  Co.  v.   Ely,  2  Cow.  678 ;  Bank  of 
Utica  v.  Wager,  2  Cow.  712 ;  S.  C.,  8  Cow.  398 ;  Utica  Ins.  Co.  v.  Til- 
man,  1  Wend.  555. 

3447.  If  a  person  discounting  a  note,  give  a  check  payable  in  un- 
current  funds,  the  transaction  is  not  usurious,  in  the  absence  of  an 
agreement  that  the  amount  should  be  so  paid.     Codd  v.  Rathbone,  19- 
N.  Y.  37 ;  S.  P.,  Slosson  v.  Duff,  1  Barb.  432  ;  Robbins  v.  Dellaye,  33 
Barb.  77. 

3448.  Taking  a  security,  bearing  interest,  and  giving  checks  for 
the  amount,  payable  in  six  months,  without  interest,  is  usury.     Lane 
v.  Losee,  2  Barb.  56. 

3449.  To  constitute  usur}',  there  must  be  a  loan,  a  taking  of  more 
than  lawful  interest,  and  a  corrupt  agreement.      Bank  of  Utica  v. 
Wager,   2    Cow.    712;    Talmage   v.    Pell,   4  N.  Y.  463;  Mumford  v. 
American  Life  Ins.  Co.  and  Trust  Co.,  4  N.  Y.  463  ;    Crocker  v.  Col- 
well,  46  N.  Y.  212. 


OF   STANDARD  DECISIONS.  471 

3450.  An  agreement  to  pay  more  than  legal  interest,  made  at  the 
time  of  the  loan,  will  avoid  a  note  taken  therefor,  though  on  its  face  it 
be  only  for  the  amount  loaned  with  legal  interest ;  otherwise,  of  a  sub- 
sequent agreement  to  pay  usurious  interest.     Merrills  v.  Law,  9  Cow, 
65 ;  S.  C.,  6  Wend.  268  ;  Austin  v.  Fuller,  12  Barb.  360. 

3451.  An  agreement  that  the  borrower  shall  receive   uncurrent 
notes  at  a  higher  rate  than  their  market  value,  renders  the  loan  usuri- 
ous.    Cleveland  v.  Loder,  7   Paige,  557  ;  Pratt  v.   Adams,  7   Paige, 
615.     Otherwise,  if  the  discount  be  very  trifling,  and  the  notes  pass 
current  in  the  market  in  the  way  of  trade.     Slosson  v.  Duff,  1  Barb. 
432. 

3452.  The   purchase   of  accommodation   proper   for   gross   sum, 
which,   on   calculation,   give   more   than   seven  per  cent,  discount  is 
usurious.     Bossange  v.  Jf?oss,  29  Barb.  576. 

3453.  Accommodation  note  negotiated  upon  a  usurious  considera- 
tion  is  void.     Blodgett  v.  Wadhams,  Lalor,  65;   Callinv.  Gunter,  11 
N.  Y.  368  ;  Newell  v.  Doty,  33  N.  Y.  83. 

3454.  If  a  party  accept  stock  at  par,  which  is  depreciated  in  the 
market,  and  give  his  bond  and  mortgage  for  the  par  value  thereof,  the 
transaction  is  not  usurious.      Willoughby  v.    Comstock,  3  Edw.  Ch. 
424. 

3455.  The  loan  of  certain  notes,  at  their  nominal  value,  which  are 
actually  worth  less  than  that  amount,  is  not  necessarily  usurious  as  a 
matter  of  law,  there  being  no  intent  to  evade  the  statute.     Sizer  v. 
Miller,  1  Hill,  227  ;  Dry  Dock  Bank  v.  American  Life  Ins.  and  Trust 
Co.,  3  N.  Y.  344. 

3456.  A  credit  given  on  a  payment  in  advance,  for  a  larger  sun* 
than  the  actual  payment,  does  not   amount  to  usury  ;  it  is  but  a  dis- 
count of  a  portion  of  the  debt.     Righter  v.  Stall,  3  Sand.  Ch.  608. 

345*7.  Nor  is  it  usurious,  on  selling  a  note  payable  at  a  future 
day,  with  interest,  to  take  a  note  for  the  principal  and  interest,  com- 
puted to  the  day  of  sale,  without  making  a  rebate  of  interest.  Lynde 
v.  Staats,  1  N.  Y.  Leg.  Obs.  89. 

3458.  If  two  persons  exchange  notes  for  the  purpose  of  raising 
money,  and  one  procure  the  other's  note  to  be  discounted  at  a  pre- 
mium exceeding  the  lawful  rate  of  interest,  the  transaction  is  not  usuri- 
ous.    Rice  v.  Mather,  3  Wend.  62 ;   Odell  v.  Greenly,  4  Duer,  358. 

3459.  If  notes  be  exchanged  for  the  purpose  of  enabling  one  of  the 
parties  to  sell  the  other's  note  at  a  usurious  rate  of  discount,  with  the 
knowledge  of  the  lender,  the  transaction  is  void  for  usury.     National 
Fire  Ins.  Co.  v.  Sackett,  11  Paige,  660. 

3460.  If  an  accommodation  note  be  sold  at  a  usurious  rate  of  dis- 
count, the  maker  is  not  estopped  from  setting  up  the  defence  of  usury, 
though  the  payee  represented  it  as  business  paper.     Hall  v.  Earnest, 

36  Barb.  585  ;  S.  P.,  Parshall  v.  Lamoreaux,  37  Barb.  189. 

3461.  The  fact  that  the  maker  of  an  accommodation  note  takes 
security   for  his  indemnity,  does  not  render  the  note  a  security  for 
value,  so  as  to  shut  out  the  defence  of  usury.     Parshall  v.  Lamoreaux, 

37  Barb.  189. 

3462.  An  exchange  of  notes  with  commission  of  two  and  a  half 
per  cent.,  if  intended  as  a  loan  of  money,  is  usurious.      Dunham  v. 
Dey,  13  Johns.  40  ;  Dunham  v.  Gould,  16  Johns.  367  ;  New  York  Dry/ 


472  MONROE'S  DIGEST 

Dock  Co.  v.  American  Life  Ins.  &  Trust  Co.,  3  Sand.  ch.  215,  S.  C.y 
3  N.  Y.  344. 

3463.  Where,  in  an  action  on  a  promissory  note,  the  defendant 
answers  that  such  instrument  is  the  last  of  a  series  of  usurious  renew- 
als of  a  usurious  promissory  note,  and  that  the  real  principal,  and 
lawful  interest  thereon,  have  been  overpaid,  and  asking  to  recoup  the  ex- 
cess, an   objection   that  the   date   of  such  renewals,   and   payments 
thereon,  are  not  alleged,  should  be  made  not  by  demurrer,  but  by  mo- 
tion to  make  specific.     Holcraft  v.  Mellott,  57  Ind.  539. 

3464.  Where  usury  was  set  up  in  the  ordinary  form  appropriate 
to  pleading  usuiy  taken  in  this  State,  and  it  appeared  that  the  agree- 
ment was  not  made  in  this  State,  and  it  also  appeared  that  a  premium 
had  been  taken  for  loan  of  the  money  and  a  further  premium  for  fur- 
ther forbearance :    Held,  that  unless  the  complainant  would  deduct  the 
premiums  and  all  interest  received  thereon,  the  defendant  should  have 
leave  to  amend  his  answer  so  as  to  set  up  the  taking  of  the  premiums. 
Glading  v.  Cuberly,  29  N.  J.  104. 

3465.  When  usury  is  pleaded  as  a  defence  the  usurious  agreement 
must  be  proved  as  laid ;  whoever  desires  the  aid  of  the  statutes  against 
usury  through  the  interference  of  the  court  must  make  out  his  title  to 
relief  by  allegations  as  well  as  proof.     L.  I.  Bank  v.  Boynton,  105  N. 
Y.  656. 

3466.  When  a  commission  merchant  in  Baltimore,  advances  to  a 
pork  packer,  in  Peoria  (,111.)  $100,000,  for  which  he  was  to  receive  in- 
terest at  the  rate  of  ten  per  cent,  per  annum,  and  a  fixed  commission 
for  the  sale  of  the  product,  to  be  paid  whether  it  was  sold  by  the  com- 
mission merchant  or  not,  it  was  properly  left  to  the  jury  to  decide  on 
all  the  facts  whether  or  not  the  commissions  were  a  cover  for  usury, 
or  were  an  honest  contract  for  commission  business  in  connection  with 
the  use  of  money.     Cockle,  et  al.  v.   Flack,  et  al.,  (3   Otto)  93  U.  S. 
Hepts.  344. 

3467.  The  express  agreement  of  ten  per  cent,  is  not  usurious,  be- 
cause  lawful  in   Illinois,  though  not  so  in  Maryland.     Andrews  v. 
Pond,  (13  Peters  U.  S.  65.)     Reaffirmed,  92  TT.  S.  344. 

15468.  Defendant  H.  entered  into  an  agreement  with  B.  Bros.  & 
Co.,  by  which  that  firm  agreed  to  manufacture  and  deliver  to  H.  200 
lumber  wagons ;  he  agreed  to  advance  fifty  dollars  on  each ;  the 
•wagons  were  to  be  sold  and  H.  to  receive  one-fourth  of  the  profits  and 
his  advances,  with  interest  at  five  and  one-fourth  per  cent.  In  an 
:action  to  charge  H.,  as  a  partner,  with  a  debt  of  said  firm,  held,  that 
the  agreement  did  not  constitute  a  partnership,  but  was  a  contract  for 
.a  loan,  the  provision  as  to  profits  being  merely  a  mode  of  providing  a 
•compensation  for  the  use  of  the  money  advanced ;  also,  that  if  the  con- 
tract was  usurious,  plaintiff  could  not  avail  himself  thereof.  Eichard- 
son  v.  Hughitt,  76  N.  Y.  55. 

3469.  It  seems,  that  such  a  contract  is  not  usurious.     Richardson 
v.  Hughitt,  76  N.  Y.  55. 

3470.  Where,  upon  the  maturity  of  a  promissory  note  given  for  a 
usurious  loan,  for  the  purpose  of  an  extension,  the  borrower  delivers 
to  the  lender  a  new  note,  by  its  terms  made  payable  to  a  third  person, 
which   note   is   transferred   by  the  lender  to  said  third  person,  it  is 
tainted  with  the  usury,  and  is  void  in  the  hands  of  the  payee,  although 


OF   STANDARD   DECISIONS.  473 

he  received   the  same  in  good  faith  and  without  knowledge  of  the 
usury.      Treadwell  v.  Archer,  76  N.  Y.  196. 

3471.  The  new  note  being  taken  by  the  usurer  is  equally  void,  as 
if  it  had  been  taken  in  his  own  name  ;  and  the  maker  is  not  estopped 
by  the  fact  that  the  promise  is  in  form  made  direct   to  the  holder. 
Treadwell  v.  Archer,  76  N.  Y.  196. 

3472.  Usury,  as  a  defence,  must  be  specially  pleaded  or  set  up  in 
the  answer  to  entitle  it  to  consideration.      The  Confederate  Note  Case, 
ly  Wall.  U.  S.  548. 

3473.  It  seems,  that  if  the  note  had  been  taken,  under  the  same 
circumstances  of  innocence,  directly  from   the  maker  by  the  payee,  in 
pursuance  of  an  agreement  to  take  it  in   discharge  of  a  debt  due  to 
him  from  the  lender,  the  maker  would  be  estopped,  and  the  payee 
could  recover  upon  the  note.     Treadwell  v.  Archer,  76  N.  Y.  196. 

3474.  The  essential  requisite  to  authorize  summary  proceedings 
under  the  statute  (2  R.  S.,  513,  §§  28,  et  seq.~)  to  remove  a  tenant  hold- 
ing over  after  the  expiration  of  his  term,  is  that  the  conventional  rela- 
tion of  landlord  and  tenant  exists:  the   person  in  possession  may, 
under  a  denial  by  affidavit  of  the  facts  upon  which  the  summons  is  is- 
sued, prove  that  the  alleged  lease  was  executed  under  and  in  pursuance 
of  a  usurious  agreement,  and  is  void ;  and  so,  that  such  relation  does 
not  exist.     People,  ex  rel.,  Ainslee  v.  Howlett,  76  N.  Y.  574. 

3475.  Usury  is  a  defence  personal  to  the  parties  to  the  contract, 
or  their  legal  representatives,  and  cannot  be  set  up  by  an  assignee  of 
the  mortgagor,  when  seeking  a  redemption.     McGuire  v.  Van  Pelt,  55 
Ala.  344. 

3476.  An   agent's   retention   of   a    percentage   as   compensation 
for  obtaining  a  loan  on  mortgage,  without  the  mortgagee's  knowl- 
edge,  does    not    constitute   usury.      Manning   v.    Young,   28   N.   J. 
Eq.  568. 

3477.  Money    paid    usuriously  may  be    recovered.     The  rule  is 
not  changed  by  the  present  Usury  Act.     Brown  v.  Mclntosh,  39  N.  J. 
Law,  22. 

3478.  Notes  given  in  1876,  for  excess  of  interest  over  seven  per 
cent,  upon  money  loaned  in  1873,  upon  a  verbal  contract  to  pay  18  per 
centum  per  annum,  are  without  a  legal  consideration,  and  no  recovery 
can  be  had  thereon.     Jones  v.  Holcombe,  60  Ga.  665. 

3479.  In  an  action  upon  a  note  valid  upon  its  face,  and  calling  for 
only  legal  interest,  the  burden  of  proving  payment  and  usury  is  upon 
the  defendant.     Lathrop  v.  Davenport,  20  Kansas,  285. 

3480.  One  who  comes  into  a  Court  of  Equity  for  relief  against  an 
usurious  contract,  will  be  compelled  to  pay  the  principal  and  legal  in- 
terest ;  and  if  the  debt  is  secured  by  mortgage,  it  will  stand  for  the 
debt  and  legal  interest.     Pickett,  et  al.  v.  Merchants'  Nat.  Bank  of 
Memphis,  32  Ark.  346. 

3481.  Building  societies  are  virtually  exempted  from  the  oper- 
ations of  the  Usury  Laws.     In  mortgages  taken  by  a  building  society 
for  advances  to  borrowing  members,  it  is  not  necessar}'  to  express  in 
the  instrument  how  much  of  the  interest  reserved  is  a  bonus  in  respect 
of  the  sum  advanced,  and  bow  much  for  interest.      The  Freehold  Per- 
manent  Building  and   Saving  Society  v.  Choate,  18  Grant  Ontario, 
Chancery,  412. 


474  MONROE'S  DIGEST 

3482.  It   is   not  necessary  for  a  party  seeking  equitable  relief 
from  a  usurious  contract  to  show  that  he  has  tendered  legal  interest 
in  addition  to  the  principal  of  his  debt.     Morris  v.  Miller,  et  al.,  46 
Iowa,  84. 

3483.  Usury  may  not  only  be  pleaded  as  a  defence,  but  also  may 
be  made  the  basis  of  original  and  affirmative  relief.     Ibid. 

3484.  M.  purchased  at  judicial  sale  the  property  of  II.     Before 
the  time  for  redemption  expired,  B.  redeemed  it,  paying  $1,485  for  the 
redemption,  and  then  entered  into  an  agreement  with  H.,  whereby, 
upon  the  payment  to  him  of  $2,000,  he  should  convey  the  property  to 
H.     Held,   that   the   transaction    between    B.   and    H.  constituted   a 
loan,  and  that  the  loan  is  usurious.      Wormley  v.  Hamburg,  et  al.,  46 
Iowa,  144. 

3485.  The  defence  of  usury  cannot  be  set  up  against  a  nego- 
tiable promissory  note  while  in  the  hands  of  an  innocent  indorsee, 
who  purchased  the  same  before  maturity.     Gross  v.  Funk,  20  Kan- 
sas, 653. 

3486.  Where,  on  a  loan  of  money,  the  borrower  agreed  to  repay, 
at  a  certain  time,  the  amount  of  the  money  loaned,  with  lawful  interest, 
and  further  agreed,  upon  default  made  in  such  payment,  to  perfect  and 
surrender  to  the  lender  certain  shares  of  stock  pledged  as  collateral 
security  for  the  loan,  held,  not  to  be  usurious.     Ramsay  v.  Morrison, 
39  N.  J.  Law,  591. 

3487.  A  sale  of  cotton  at  a  price  beyond  its  real  value  to  one  who 
resold  for  a  less  price,  will  not  be  denounced  as  an  usurious  transaction, 
unless  there  was  a  proposition  to  the  seller  to  borrow,  and  negotiations 
terminating  in  a  sale ;  or  a  knowledge  of  the  borrower's  necessities, 
and  that  he  was  purchasing  at  an  exorbitant  price,  to  relieve  himself 
by  a  subsequent  sale  at  a  less  price  ;  or  something  showing  a  design  on 
the  part  of  the  vendee  to  borrow  and  the  vendor  to  loan  money,  under 
device  of  sale,  whereby,  under  guise  of  excess  of  price,  usurious  interest 
was  reserved.     If  design  existed,  it  is  immaterial  in  what  shape  it  is 
veiled.     Barr  v.  Collier,  54  Ala.  39. 

3488.  When  a  sale  is  made  under  a  mortgage,  whether  the  con- 
tract   was   usurious  or   not,  is  immaterial  in  an  inquiry  as  to  the 
validity  of  the  sale  ;  usury  affects  only  the  distribution  of  the  proceeds, 
not  the  sale  itself.     If  more  than  legal  interest  has  been  extorted  by 
the  mortgagee,  the  Court,  in  distributing  the  proceeds,  may  direct  it  to 
be  -withheld  or  refused.     Carroll  v.  Kershner,  47  Md.  262. 

3489.  Under  the  Act  of  February  18, 1848  (S.  and  C.  744),  all  pay- 
ments of  usurious  interest  are  to  be  taken  as  payments  on  account  of 
the  principal ;  and  where  the  sureties  on  a  negotiable  promissory  note, 
given  by  way  of  removal  for  money  previously  loaned,  have  been  com- 
pelled to  sell  such  note  to  an  indorsee,  who  purchased  the  same  bona 
fide  before  due,  they  may,  under  the  statute,  recover  from  the  payee 
the  amount  of  usury  exacted  by  him  from  their  principal,  which  they 
have  been  so  compelled  to  pay  to  the  holder  by  reason  of  the  indorse- 
ment of  the  note.     Kock  v.  Block,  29  Ohio,  565. 

3490.  The  right  to  borrow  money  within  the  prescribed  limits,  and 
issue  certificates  therefor,  bearing  interest,  is  conferred  by  the  borough 
law  of  the  State ;  and  the  fact  that  the  bond  in  this  case  called  for 
eight  per  cent,  interest,  did  not  invalidate  it,  and  it  was  only  void  for 


OF   STANDARD   DECISIONS.  475 

the  excess  over  the  legal  rate  of  interest.  Parkinson  v.  City  of  Parker, 
85  Penn.  St.  313. 

3491.  A  confession  of  judgment,  made  for  the  purpose  of  aiding  in 
the  violation  of  the  Usury  Law,  will  be  regarded,  as  between  the  parties 
to  the  usurious  contract,  void  as  to  the  amount  in  excess  of  the  sum  the 
judgment  creditor  may  lawfully  recover.     Mullen,  el  al.  v.  Eussell,  et 
al,  46  Iowa,  386. 

3492.  A   provision   in  a  note  requiring  the  interest  to  be  paid 
quarterly,  and  stipulating  that  the  interest,  if  not  paid  when  due,  shall 
bear  interest  at  the  rate  of  10  per  cent.,  does  not  render  the  contract 
usurious.     Eagan  v.  Day,  et  al.,  46  Iowa,  239. 

3493.  A  party  residing  in  one  State  who  goes  into  another  State 
and  there  makes  an  agreement  with  a  citizen  of  that  State  for  a  loan, 
lawful  by  its  laws,  but  usurious   under  the  laws  of  the  borrower's 
State,  cannot  render  his  obligation  void  by  making  it  payable  in  his 
own  State.     Nor  does  the  fact  that  the  obligation  is  executed  in  the 
latter  State,  and  sent  to  the  borrower  by  mail,  require  that  it  should 
be  governed  by  the  usury  laws  of  the   State  where  it  was  signed. 
Wayne  Co.  Sav'gs  Bank  v.  Low,  81  N.  Y.  566. 

3494.  In  pursuance  of  an  agreement  made  in  Pennsylvania  be- 
tween plaintiff,  a  corporation  organized  and  doing  business  in  that 
State,  and  defendant,  a  citizen  of  New  York,  for  the  renewal  of  a  prom- 

'issory  note  held  by  the  former,  made  by  the  latter,  plaintiff  mailed  to 
defendant  a  promissory  note  for  him  to  execute  and  return.  This  note 
was  dated  and  executed  by  defendant  at  M.  in  this  State,  and  was  made 
pa3rable  there ;  it  was  returned  to  plaintiff  by  mail,  with  a  check  to  pay 
the  discount.  The  discount  was  at  a  rate  lawful  in  Pennsylvania,  but 
greater  than  lawful  interest  in  this  State.  In  an  action  on  the  note, 
held,  that  as  the  note  was  executed  to  be  used  in  Pennsylvania,  the  law 
of  that  State  must  control,  and  that,  therefore,  the  note  was  not 
usurious.  Wayne  Co.  Sav'gs  Bank  v.  Low,  81  N.  Y.  566. 

3495.  In  an   action  upon  a  promissory  note,  wherein  the  defence 
was  usury,  defendant  testified  that  at  the  time  of  giving  it  he  paid  in- 
terest on  the  amount  at  the  rate  of  one  dollar  per  day  for  $1,000;  that 
it  was  given  in  renewal  of  other  notes,  on  which  the  same  rate  of  in- 
terest was  paid  ;  that  the  same  rate  was  paid  on  the  note  given  for  the 
original  loan,  and  that  all  the  notes  were  received  by,  and  interest  paid 
to  the  clerks  of  plaintiff's  testator,  at  his  banking-house.     It  was  not 
claimed  that  any  part  of  the  interest  was  paid  to  the  clerks  as  com- 
missions for  their  services,  or  for  their  benefit  in  any  way,  or  other- 
wise than  as  clerks  for  the  deceased.     One  of  said  clerks  testified  to 
payments  as  sworn  to  by  defendant,  and  that  he,  witness,  made  some 
of  the  loans  by  direction  of  the  deceased.     Held,  that  the  evidence 
justified  a  finding  of  usury.     Pratt  v.  Elkins,  80  N.  Y.  198. 

3496.  The  Usury  Law  of  1862  is  constitutional,  and  a  contract 
made  in  violation  of  it  will  not  be  enforced.     State  v.  Chapman,  5 
Oregon,  432. 

349*7.  The  forfeiture  of  an  usurious  debt  to  the  School  Fund 
carries  with  it  the  security  for  the  payment  of  the  debt,  for  the  reason 
that  the  security  is  an  incident  of  the  debt,  and  is  tainted  with  the 
usury.  Ibid. 

3498.     The  knowingly   taking  or  receiving,  by  a  national   bank, 


476  MONROE'S  DIGEST 

of  a  greater  rate  of  interest  than  is  allowed  by  the  State  in  which 
the  bank  is  located,  is,  under  the  Act  of  Congress,  usurious,  and 
the  bank  incurs  the  forfeiture  of  the  entire  interest.  The  lim- 
itation of  two  years,  contained  in  the  Act,  applies  alone  to  pro- 
ceedings for  the  recovery  of  the  forfeiture  provided  for,  and  not  to  the 
defence  of  usury  ;  the  State  Courts  have  jurisdiction  of  questions 
arising  under  the  act.  Pickett,  et  al.  v.  Merchants'  Nat.  Bank  of  Mem- 
phis, et  al,  32  Ark.  346. 

3499.  That  although  the  Code  provides  the  mode  and  manner  in 
which  a   defendant  may  plead  usury,  its  provisions  do  not  in  any 
manner  deprive  a  party  of  existing  remedies  for  relief  against  the  pay- 
ment of  illegal  interest,  even  though  he  may  have  failed  to  avail  him- 
self of  the  plea.     Such  being  the  law,  there  is  no  reason  why  a  party 
may  not  except  to  the  confirmation  of  an  award  on  the  ground  of 
usury,  even  though  no  such  defence  was  made  before  the  arbitrator. 

Woods  v.  Malchett,  47  Md.  390. 

3500.  Where  a  loan  is  effected  through  an  agent,  the  fact  that 
the  amount  received  by  the  borrower  is  less  than  that  advanced  by 
the  principal,  and  specified  in  the  note,  does  not  render  it  usurious, 
in    the    absence   of  proof  that    the   agent   acted   for   the   lender   in 
retaining  the  sum  which  is  deducted  from  the  note.      Wyllis  v.  Ault,  et 
al.,  45  Iowa,  46. 

3501.  A  separate  note,  given  by  the  borrower  to  the  agent  for  his 
services  in  negotiating  the  loan,  will  not  be  tainted  with  usury  where 
the  agent  acts  for  the  borrower,  and  not  the  lender.     Ibid. 

3502.  When    usurious    interest    is    carried    into  a   general   ac- 
count,  and    made   part    of   a   sum   found   due   on    final   settlement, 
for   which    a   note   is   executed,   it   taints   the  entire   conti'act   with 
usury  ;  and  it  matters  not  that  the  usurious  interest  was  charged  with 
the  tacit  consent  of  the  debtor  in  stating  monthly  accounts,  or  by  a 
note  substituted  for  one  previously  executed.     Pickett  v.  Merchants' 
Nat.  Bank,  32  Ark.  346. 

3503.  R.  S.,  of  1857,  c.  45,  relating  to  usury,  was  unconditionally 
repealed  by  St.  of  1870,  c.  169,  which  expressly  excepted  by  the  gen- 
eral Repealing  Act,  c.  174,  St.  1870.     To  a  promissory  note  in  which 
is  reserved,  and  on  which  was  received,  excessive  interest,  given  May 
13,  1857,  while  R.  S.  of  1841,  c.  69,  was  in  force,  and  sued  upon  August 
5,  1874,  after  the  unconditional  repeal  of  R.  S.  1857,  c.  45,  usury  is  no 
defence,  and  the  maker  of  the  note  can  claim  no  deductions  for  ex- 
cessive interest  reserved  or  paid.     Holmes  v.  French,  68  Me.  525. 

3504.  The  plea  of  usury  is  personal,  and  when  a  third  party  as- 
sumes the  pa}rment  of  a  usurious  debt,  and  gives  the  creditor  an  as- 
surance of  payment,  he  can  neither  dispute  with  the  creditor  the  valid- 
ity or  the  amount  of  the  debt.     The  consideration  passing  from  the 
debtor  to  the  party  undertaking  to  pay,  is  presumed  to  be  adequate 
to  sustain  the  undertaking ;  but   where  the  amount  of  the  liability  is 
left  for  future  ascertainment,  and  there  are   rights  and  interests  re- 
served that  can  only  be  protected  by  the  party  who  has  contracted  to 
pay  the  debt,  or  by  the  debtor  himself,  the  rule  is  different,  and  the  de- 
ience  may  be  interposed  by  the  third  party.     Pickett,  et  al.  v.  Mer- 
chants' Nat.  Bank,  32  Ark.  346. 

3505.  J.  C.  who  lived  in  Ohio,  executed  his  single  bill  in  Ohio, 


OP   STANDARD   DECISIONS.  477 

payable  to  P.,  and  pursuant  to  a  former  arrangement  with  S.  C.,  the 
brother  of  J.  C.  P.,  took  the  single  bill  to  Virginia  where  he  and  S.  C, 
lived,  and  there  S.  C.  signed  the  bill  which  was  a  joint  and  several 
obligation,  as  surety  for  his  brother.  The  single  bill  did  not  specify 
where  it  was  to  be  paid,  and  on  its  face  was  to  bear  interest  at  eight 
per  cent,  per  annum  from  date.  By  the  laws  of  Ohio  the  interest  was 
lawful,  but  by  the  law  then  in  force  in  Virginia,  December,  1858,  a 
greater  rate  of  interest  than  six  per  cent,  per  annum  rendered  the  con- 
tract void.  S.  C.  died,  the  single  bill  still  being  unpaid ;  suit  was 
brought  in  Hancock  County  against  the  administrator  of  S.  C.  to  re- 
cover the  amount  thereof;  the  administrator  pleaded  usury;  the  case 
was  tried  before  the  court,  in  lieu  of  a  jury,  and  judgment  rendered  for 
the  amount  of  the  single  bill,  with  eight  per  cent,  interest.  Held,  that 
if  the  plea  of  usury  could  not  have  availed  the  principal  obligor  in  the 
single  bill  it  would  not  have  been  of  any  avail  to  the  surety,  as  the 
surety  could  not  attack  the  validity  of  the  contract,  if  the  principal 
could  not.  That  the  single  bill  being  executed  by  the  principal  in 
Ohio,  and  the  surrounding  circumstances  showing  it  was  to  be  paid 
there,  S.  C.  in  signing  it  in  Virginia  as  surety,  ratified  it  as  an  Ohio 
contract.  It  being  an  Ohio  contract  and  valid  under  the  usury  laws 
of  that  State,  the  surety  although  he  signed  it  in  Virginia,  could  not 
avail  himself  of  a  plea  of  usury  thereto.  Pugh  v.  Cameron  Adm'r, 
11  W.  Va.  523. 

3506.  It  is  a  good  defence  to  an  action  by  a  payee  against  the 
maker  of  a  promissory  note  made  in  New  York,  payable  "  on  demand 
with  interest,"  that  the  payee  received  it  as  a  substitute  for  a  draft 
there  drawn  under  an  oral  agreement,  with  his  knowledge,  for  more 
than  legal  interest,  and  that  the  note  itself  was  made  under  an  oral 
agreement  that  he  should  receive  the  same  interest  upon  it  as  that  re- 
ceived in  a  certain  other  note  which  was  usurious,  and  the  latter  note 
is  admissible  in  evidence  to  show  what  that  rate  was.     Stanton  v.  De- 
mervift,  122  Mass.  495. 

3507.  The  only  question  submitted  upon  the  hearing  was,  whether 
the  defence  of  usury  is  established.     The  mortgagor  evidently  paid  a 
large  commission  in  the  negotiation  of  the  loan  of  $6,000,  and  it  is 
probable  that  he  paid  a  large  one  on  the  subsequent  loan  of  $8,000 ; 
but  it  does  not  appear  that  Mrs.  S.,  the  mortgagee,  or  B.,  her  agent  in 
making  the  loans,  received  or  had  any  benefit  from  those  commissions. 
The  proof  that  she  lent  the  whole  of  the  $8,000.     The  defence  of 
usury  is  not  established,  and  there  will  be  a  decree  for  the  complainant 
accordingly.     Spring,  Ex.  v.  Reed,  et  al.,  28  N.  J.  Eq.  345. 

3508.  The  answering  defendants,  by  their  answer,  set  up  the  de- 
fence of  usury,  and  they  insist  that  the  mortgage  in  suit  is  so  affected 
thereby  that  not  only  is  the  whole  of  the  interest  forfeited,  but  the  bill 
must  be  dismissed,  because  no  interest  has  ever  been  recoverable  on  the 
mortgage,  in  consequence  of  the  usury,  and  therefore,  there  has  been 
no  default;  and  if  no  default,  the  principal  is  not  due,  and  will  not  be 
due  until  the  1st  of  July,  1878.     The  mortgage  in  suit  was  given  to 
secure  the  payment  of  three  several  and  distinct  loans  by  the  mort- 
gagee to  the  mortgagor,  H.     On  the  first  of  these  a  premium  was 
taken,  but  none  on  either  of  the  others.     The  second  and  third  loans 
were  neither  of  them  usurious.     The  first  was — to  that  the  forfeiture 


478  MONROE'S  DIGEST 

should  be  confined.  Crippen  v.  Heermance,  9  Paige,  211.  No  inter- 
est is  recoverable  in  respect  to  the  amount  of  that  mortgage,  and  the 
interest  received  by  the  mortgagee  on  the  $500  premium  must,  with 
the  premium  be  deducted.  Bedle  v.  Wardell,  10  C.  E.  Gr.  349.  In- 
terest is  recoverable  on  the  rest  of  the  amount  of  the  principal,  that  is, 
on  $2,500.  According  to  the  bill,  no  interest  has  been  paid  since  the 
1st  of  January,  1875,  and  the  complainant  elected  that  the  principal 
should  at  once  become  due,  by  reason  of  the  default.  If,  in  fact,  no 
interest  whatever  were  recoverable  on  the  mortgage,  that  fact  would 
not  relieve  the  defendants  from  the  consequences  of  the  default.  The 
default  would  still  exist,  notwithstanding  the  fact  that  the  interest  is 
not  recoverable  by  suit.  The  principal  of  the  mortgage,  less  the 
amount  of  the  premium  is  due.  Mahn  v.  Hussey,  28  N.  J.  Eq.  546. 

3509.  The  defence,  which  the  petitioner  asks  an  opportunity  to  set 
up,  is  usury.     She  alleges,  in  her  petition,  that  the  mortgages  of  the 
complainant  were  made  in  New  York  upon  usurious  contracts,  and 
that  they  are  therefore,  under  the  law  of  that  State,  absolutely  void, 
.and  should  be  decreed  to  be  so  in  this  State.     In  order  to  entitle  her 
to  the  relief  which  she  seeks  on  this  petition  she  must  show  that  she 
has  an  equitable  and  meritorious  defence.     Hooner  v.   Corning,  ubi 
subra.     The  defence  of  usury  under  existing  law  of  this  State  is  not 
unconscientious.     Conover  v.  Van  Mater,  3  C.  E.  Gr.  481;    Wagner  v. 
Blanchet,  12   C.  E.  Gr.  356.     The  defence  which  the  petitioner  asks 
leave  to  interpose  against  the  complainant's  mortgage  is  so.     She  can- 
not, therefore,  have  leave  to  set  it  up.     Corning  v.  Ludlum,  28  N.  J. 
Eq.  398. 

3510.  Wren  borrowed  money  at  usurious  interest  and  gave  a  bond 
for  its  payment,  on  which  judgment  was  entered.     He  was  afterwards 
adjudged  a  bankrupt,  and  his  land  sold  by  the  assignee  subject  to  the 
judgment.     Held,  that  the  purchaser  could  not  have  the  judgment  re- 
duced by   the  amount  of  the  usury.     In  the  distribution  of  a  fund 
judgment  creditors  may  attack  a  judgment  collaterally  for  fraud  on 
them,  but  not  because  it  is  a  fraud  on  the  debtor.     Pa}'ment  of  usury 
is  not  necessarily  fraudulent  as  to  creditors.     Whenever  the  usurious 
Contract  is  intended  to  defraud  creditors,  or  when  the  circumstances  of 
the  debtor  are  known  to  be  such,  that  it  can  be  reasonably  presumed 
that  this  will  be  the  natural  effect,  creditors  have  the  right  to  postpone 
the  excess  of  interest.     Miner's  Trust  Co.  Bank  v.  fioseberry,  81  Penn. 
St.  309. 

3511.  Yan  Auken  gave  a  note  to  Everett  for  $3,340,  judgment  wag 
-entered  on  it;  Everett  assigned  $2,500  of  it  to  Dunning;  on  affidavit 
-of  Van  Auken  the  judgment  was  opened  and  he  let  into  a  defence.     On 
the  trial  he  offered  to  prove  that  Dunning  lent  him  $2,500  in  New 
York  at  a  rate  of  interest  usurious  by  the  laws  of  that  State ;  that 
Van  Auken  procured  the 'assignment  of  the  judgment  as  collateral 
security  for  the  loan,  it  having  been  paid  by  the  money  borrowed  from 
Dunning.     Held,  that  this  would  be  a  defence,  Dunning  was  entitled 
to  recover  the  amount  lent  and  legal  interest.     The  offer  not  being  to 
show  that  the  contract  was  void  for  usury  by  the  laws  of  New  York, 
the  presumption  was  that  they  were  the  same  as  in  Pennsylvania,  and 
the  contract  was  to  be  treated  as  void  only  for  the  excess  of  interest. 

Van  Auken  v.  Dunning,  81  Penn.  St.  464. 


OF   STANDARD  DECISIONS.  479 

3512.  Where  a  note  which  is  tainted  with  usury  has  been  trans- 
ferred to  another  without  notice,  and  even  where  the  transferee  is  not 
proven  to  have  known  of  the  taint,  for  a  valuable  consideration  with- 
out indorsement  and  without  representation  as  to  legality,  no  warranty 
against  it  will  be  implied,  and  an  action  cannot  be  sustained  against 
him  for  loss  sustained  by  the  purchaser  by  reason  of  the  delect;  a 
scienter  is  essential  to  establish  an  implied  warranty  as  to  the 
validity  of  the  note.  A  transfer  of  this  kind  implies  simply  a 
warranty  of  title  and  that  the  note  is  genuine.  The  Court  held 
the  question  whether  an  action  will  lie  for  the  loss  sustained  by 
the  plaintiff  by  reason  of  the  note  being  usurious,  and  the  recovery 
of  the  amount  thereof  thereby  defeated,  has  never  arisen  under  the 
precise  circumstances  presented  in  this  case,  and  demands  an  examina- 
tion of  the  principle  applicable  to  the  contract  entered  into  upon  the 
sale  of  paper  of  this  description,  and  of  the  authorities  bearing  upon 
the  subject.  The  rule  is  well  settled  that  generally  one  who  transfers 
paper  by  delivery  only,  incurs  none  of  the  liabilities  which  attach  to 
.an  indorser,  for  the  reason  that  the  irresistible  inference  is,  that  if  he 
transfers  it  and  it  is  received  without  his  indorsement,  that  such  lia- 
bilities did  not  enter  into  the  bargain  or  the  intention  of  the  parties. 
This  rule,  however,  is  not  without  exception,  and  the  transferrer  of 
notes  or  bills  by  delivery  warrants  the  genuineness  of  the  signatures, 
and  that  the  title  is  what  it  purports  to  be.  If  the  paper  is  forged  the 
transferee  is  liable  upon  the  original  consideration  which  has  never 
been  extinguished  by  the  sale.  So  also,  it  is  laid  down  by  that  vendor 
without  indorsement  warrants  that  the  paper  is  an  implied  warranty 
that  the  parties  to  the  paper  are  under  no  incapacity  to  contract,  as 
from  infancy  or  marriage  or  other  disability  to  contract,  and  the  assign- 
ment of  a  bill  or  note  for  a  valuable  consideration  raises  an  implied 
warranty  that  the  assignor  has  done  nothing,  and  will  do  nothing  to 
prevent  the  assignee  from  collecting  it.  The  reason  given  as  to  forged 
paper  is  that  it  is  nothing,  and  the  one  who  has  transferred  it  has 
transferred  nothing,  and  is  therefore  liable.  In  Webb  v.  Odell,  49  N. 
Y.  583,  a  recovery  for  the  purchase  price  was  upheld  where  notes  were 
sold  for  less  than  their  face,  upon  a  representation  that  they  were  busi- 
ness papers,  when,  in  fact,  they  were  accommodation  notes,  and  thus 
usurious  and  void  in  the  hands  of  the  vendee.  The  decision  is  placed 
upon  the  ground  that  the  thing  sold  differed  in  substance  from  what  the 
purchaser  was  led  by  the  vendee  to  believe  he  was  buying,  and  the 
difference  was  so  substantial  and  essential  in  its  character  as  to  amount 
to  a  failure  of  consideration.  The  representation  that  the  notes  were 
business  paper  was  an  important  fact,  and  hence  the  decision  does  not 
exactly  cover  a  case  where  the  party  transfering  had  no  knowledge  of 
the  true  character  of  the  paper.  In  Ross  v.  Terry,  63  N.  Y.  613,  the 
•defendant  sold  a  bond  and  mortgage  to  the  plaintiff,  which  was  usurious 
and  void.  The  defendant  was  personally  concerned  in  the  making  of 
them,  and  in  the  unlawful  acts  which  vitiated  them,  and  it  was  held 
that  there  was  an  implied  warranty  of  the  validity  of  the  securities. 
In  Luke  v.  Smith,  7  Abb.  N.  S.  106,  the  defendants,  who  sold  a  usuri- 
ous note  to  the  plaintiff,  were  held  liable  upon  an  implied  warranty  by 
defendants  on  the  sale  of  the  note,  that  there  was  no  legal  defence  to 
,an  action  upon  it,  but  it  appeared  that  the  defendants  were  privy  to  the 


480  MONROE'S  DIGEST 

consideration  of  the  note,  and  the  facts  and  circumstances  under  which 
it  was  given  and  transferred.  In  Hoe  v.  Sanborn,  21  N.  Y.  552r 
Selden  J.,  lays  down  the  rule  "  that  whenever  an  article  sold  has  some 
latent  defect,  which  is  known  to  the  seller,  and  not  to  the  purchaser^ 
the  former  is  liable  for  this  defect  if  he  fails  to  discover  his  knowledge 
on  the  subject  at  the  time  of  the  sale."  There  is  no  precedent  and  not 
a  single  reported  case  in  the  books  in  favor  of  the  doctrine  that  where 
a  promissory  note  is  infected  with  usury,  and  that  fact  is  unknown  to 
the  party  who  transferred  it,  that  is  an  implied  warranty  of  the  valid- 
ity of  the  note.  To  uphold  such  a  doctrine  would  be  an  innovation 
upon  a  settled  principal  of  law  and  the  establishing  of  a  new  and  differ- 
ent rule  from  that  which  has  governed  the  sale  and  transfer  of  this 
species  of  property  for  a  long  period  of  time.  Littaner  v.  Goldman, 
72  N.  Y.  App.  506.' 

3513.  When,  at  the  time  of  an  agreement  for  a  loan,  nothing  is 
said  as  to  the  rate  of  interest,  the  law  implies  it  to  be  that  limited  by 
statute;  to  increase  or  alter  it,  a  special  agreement  is  necessary,  and 
where  the  defence  of  usury  is  interposed,  the  burden  of  showing  that- 
such  an  agreement  was  made  is  upon  the  defendant.     Guggenheimer  v. 
Gieszler,  81  N.  Y.  293. 

3514.  G.,  being  indebted  to  S.  upon  notes  past  due,  amounting  to- 
$172.45,  which  were  in  the  hands  of  R.,  an  attorney,  for  collection,  it 
was  agreed  that  S.  should  loan  to  the  former  $1,500.     Nothing  was  said 
as  to  the  rate  of  interest.     G.  was  to  pay  the  attorney's  fees.     The 
parties  thereafter  met  at  the  office  of  R.,  and  without  any  words  or 
parley  a  bond  and  mortgage  were  executed  and  delivered  by  G.  to  S.r 
as  security  for  the  loan.     A  statement -showing  the  amount  due  on  the 
notes,  a  receipted  bill  of  R.,  as  attorney,  made  out  to  G.,  and  a  check 
for  the  balance  of  the  $1,500,  after  deducting  these  two  items,  were 
handed  to  G. ;  one  item  of  R.'s  bill  was,  "  commission  for  obtaining 
loan,  $150."     There  was  no  foundation  for  this  charge,  and  it  was  in- 
tended for  the  benefit  of  S.,  was  never,  in  fact,  paid  to  R.,  but  retained 
by  S.     G.  questioned  the  correctness  of  this  charge.     S.  replied  it  was 
cheap  enough,  and  he  could  do  no  better.     In  an  action  to  foreclose  the 
mortgage,  held,  that  these  facts  did  not  sustain  a  defence  of  usury,  as 
there  was  no  agreement  or  intent  on  the  part  of  G.  to  pay  usury  ;  that 
under  the  agreement  for  the  loan,  S.  was  entitled  simply  to  lawful 
interest.     G.  was  under  no  obligation  to  allow  any  of  the  loan  to  be 
retained  to  pay  the  $150,  but  was  entitled  to  recover  that  amount.. 
Guggenheimer  v.  Gieszler,  81  N.  Y.  293. 

3515.  It  seems  that  G.  might  claim  that  the  recovery  should  in- 
clude only  the  amount  actually  received  by  him,  and  the  attorney's  fees 
allowed  by  him,  deducting  the  item  of  $150.    Guggenheimer  v.  Gieszlerr 
81  N.  Y.  293. 

3516.  The  note  in  suit  was  without  interest ;  it  was  transferred  to- 
plaintiff,  together  with  twelve  other  notes  which  were  business  paper, 
at  the  same  time  and  as  one  transaction,  at  a  discount  from  the  aggre- 
gate amount  of  the  notes  greater  than  legal  interest.     There  was  evi- 
dence tending  to  show  that  there  was  a  difference  in  the  value  of  the 
notes,  some  being  poor  and  considered  worth  but  little,  while  that  of 
the  defendant  was  good,  and  it  was  talked  that  a  greater  discount  should 
be  made  upon  the  former.     Held,  that  the  inference  was  proper  that 


OF   STANDARD  DECISIONS.  481 

plaintiff  did  not  deduct  from  defendant's  note  at  the  same  rate  as  from 
the  others ;  and  that  as  there  were  no  facts  from  which  the  referee 
could  say,  with  the  needed  legal  precision,  what  was  the  rate,  he  could 
not  say  it  was  greater  than  the  lawful  rate ;  and  that,  therefore,  a  find- 
ing that  there  was  no  usury  was  justified.  Bayliss  v.  Cockcroft,  81 
N.  Y.  363. 

3517.  In  an  action  to  foreclose  a  mortgage  for  $2,500,  the  defence 
was   usury.     The  court  found  that  the  mortgage  and  accompanying 
bond  were  executed  to  one  H.,  not  as  a  security,  but  only  for  the  pur- 
pose of  being  sold  to  plaintiff  at  a  discount ;  that  they  were  so  sold 
and  were  usurious.     Defendant's  evidence  was  to  the  effect  that  F.,  the 
mortgagor,  before  the  execution  of  the  bond  and  mortgage,  applied  to 
plaintiff  for  a  loan  of  $2,500,  that  plaintiff  directed  him  to  go  and  make 
a  mortgage  to  somebody  else,  that  he  could  buy  it  of  them,  and  would 
loan  the  money.     No  terms  of  loan  were  stated,  and  no  property  speci- 
fied to  be  mortgaged.     H.  held  judgments  against  F.  to  the  amount  of 
about  $900.     The  bond  and  mortgage  were  executed  to  secure  this  in- 
debtedness.    H.  also  advanced  thereon  $320,  and  it  was  understood 
that  the  balance  realized  on  sale  of  the  securities  after  paying  the  judg- 
ments and  the  money  advanced  was  to  be  paid  to  F.     They  were  offered 
to  other  parties  before  plaintiff  purchased,  and  were  sold  to  him  at  a 
discount.     Held,  that  the  evidence  did  not  sustain  the  finding  ;  that  the 
defence  of  usury  was  not  made  out,  but  only  as  to  part  of  the  sum 
secured  a  failure  or  want  of  consideration  ;  that  the  bond  and  mortgage 
were  valid  securities  in  the  hands  of  H.  for  the  amount  of  his  judg- 
ments and  the  sum  advanced  by  him,  and  to  that  extent,  at  least,  plain- 
tiff, standing  in  the  place  of  H.,  could  enforce  them.     Sickles  v.  Flana- 
gan, 79  N.  Y.  224. 

3518.  Although  a  loan  of  money  may  be  usurious  and  the  contract 
to  return  it  void,  yet,  in  the  absence  of  statutory  enactment,  it  does 
not  follow  that  the  borrower,  after  he  has  once  repaid  the  money,  nor 
even  that  his  assignee  in  bankruptcy,  whose  rights  are  in  some  respects 
greater  than  those  his  own,  can  recover  the  principal  and  illegal  inter- 
est paid.     Equity,  however,  in  its  discretion  may  enable  either  to  get 
back  whatever  money  the  borrower  has  paid  in  excess  of  lawful  inter- 
est.    Tiffany  v.  Boatman's  Institution,  18  Wall.  U.  S.  375 

31 


482  MONROE'S  DIGEST 


VENDOR. 

3519.  Vendor  who  has  guaranteed  a  good  title  to  the  property  he 
has  sold  cannot  collect  the  price  of  the  sale  from  the  vendee  until  he 
has  made  the  title  good.      Wamsley  v.  Hunter,  29  La.  628. 

3520.  The  vendor  of  real  estate  has  a  lien  upon  the  property  sold 
for  the  unpaid  purchase  money,  independent  of  the  existence  of  a  lien 
evidenced  by  a  title  bond  or  mortgage.     Hosier  v.  Sale,  10  Iowa,  470; 
Malony   v.    Fortune,   14    Iowa,   417;    Harlan  v.   Sigler,  Morris,  39; 
Griffey  v.  Payne,  Morris,  68  ;  Jordan  v.  Wimer,  45  Iowa,  65,  Seevers, 
<Ch.  J.,  dissenting. 

3521.  If  the  vendor  of  land  retains  the  legal  {itle  until  payment 
is  made,  or  if  he  creates  an  express  lien  in  his  deed  to  secure  the  pur- 
chase money,  an  assignment  of  the  notes  given  therefor  carries  with  it 
the   security  to  the  same  extent  as  it  existed  for  the  benefit  of  the 
vendor.     Moore  v.  Lackey,  53  Miss.  85. 

3522.  A  note  for  the  purchase  money  of  land,  payable  in  Missis- 
sippi certificates  of  indebtedness,  is  secured  by  the  vendor's  equitable 
lien  the  same  as  if  payable  in  money.     Deason  v.  Taylor,  53  Miss.  697. 

3523.  A  person  who,  having  discovered  a  flaw  in  a  title  to  land, 
purchases  the  title  for  speculation,  with  a  view  to  ousting  the  posses- 
sor, who  claims  to  be  the  real  owner,  is  not  a  bona  fide  purchaser. 

Wanner  v.  Sisson,  29  N.  J.  141. 

3524.  Vendor  of  lands,  who  had  taken  a  note  therefor,  which  he 
had  indorsed  and  negotiated,  was  held  liable  without  notice  on  the 
ground  that  he  had  retained  the  title  of  the  land  as  security.     Develing 
v.  Ferris,  18  Ohio,  170. 

3525.  Title  does  not  vest  till  the  delivery  of  the  deed.     Heffron  v. 
Flanigan,  37  Mich.  274. 

3526.  Giving  a  receipt  or  taking  a  note,  with  security,  from  the 
purchaser,  or  taking  a  note  of  a  third  party,  specifying  in  either  case 
it  is  for  the  purchase  money,  will  not,  while  the  title  remains  in  the 
vendor,  be  an  extinguishment  of  the  vendor's  lien  unless  the  purchase 
money  has  been  actually  paid.     Dunlap,  ex*r  v.  Shanklin,  10  West 
Virginia  Reports,  662. 

3527.  As  soon  as  an  order  for  goods  is  accepted  by  the  vendor,  the 
contract  is  complete  without  further  notice  to  the  vendee  ;  and  such 
contract  is  fully  performed  on  the  part  of  the  vendor  by  the  delivery 
of  the  goods  in  good  condition  to  the  proper  carrier.     A  delivery  to  a 
carrier  designated  by  the  vendee  is  of  the  same  legal  effect  as  a  delivery 
to  the  vendee  himself;  if  no  particular  route  or  carrier  is  indicated  by 
the  vendee,  it  is  the  duty  of  the  vendor  to  ship  the  goods  ordered  in  a 
reasonable  course  of  transit.     Ober  v.  Smith,  78  N.  C.  313. 

3528.  To  enable  vendor  to  recover  the  purchase  money,  he  must 
•aver  performance  on  the  day  named  on  his  own  part  or  an  offer  to  per- 
form.    Bank  of  Columbia  v.  Hagner,    1  Peter,  U.  S.  455. 

3529.  Vendee  of  stock  who  rescinds  contract  for  fraud  is  not  bound 
to  receive  certificate  left  on  deposit  for  him,  and  tender  it  to  vendor 
before  bringing  action  for  the  purchase  money.     Pence  v.  Langdon,  99 
IT.  S.  578. 

3530.  Purchaser  who  has  enjoyed  property  for  ten  years  cannot 


OF   STANDARD   DECISIONS.  483 

invoke  equity  to  stay  judgment  for  price  on  ground  of  illegality  of 
•contract.      Truly  v.  Wanzer,  5  How.  U.  S.  141. 

3531.  Each  party  must  take  care  not  to  say  or  do  anything  tend- 
ing  to  impose  on  the  other.     Doctrine  of  Pothier  as  to  respective 
obligations  of  vendor  and  vendee  in  this  respect.     Laidlaw  v.  Organ, 
2  Wheat.  U.  S.  178. 

3532.  For  a  refusal  on  the  part  of  the  vendee  to  perform  a  con- 
tract for  the  purchase  of  real  estate  the  vendor  has  two  remedies,  one 
to   recover   damages,  the   other  for  specific  performance.     Smyth  v. 
Sturges,  108  N.  Y.  495. 


WAREHOUSE    RECEIPT. 

3533.  A  warehouseman's  receipt  for  goods  not  in  his  warehouse  at 
the  time  of  the  execution  and  delivery  of  the  receipt,  although  he  was 
the  owner,  did  not  pass  any  right  or  title  to  the  holder  of  such  receipt 
so  as  to  affect  innocent  third  parties.     But  after  removing  the  goods  to 
his  warehouse,  the  warehouseman  might,  by  a  subsequent  stipulation 
-or  ratification  of  his  original  contract,  before  the  rights  of  others  inter- 
vened, again  pledge  the  property  to  secure  the  liability,  for  the  security 
of  which  the  original  receipts  were  given.      The  new  receipts  took  effect 
at  the  time  of  their  execution  and  delivery,  although  they  were  dated 
back  to  correspond  with  the  dates  of  the  original  receipts.     Cochran  & 
Fulton  v.  Ripy,  Hardie  &  Co.,  et  al.,  13  Bush,  Ky.  495. 

3534.  A  party  having  property  stored  in  a  warehouse  may  sell  or 
dispose  of  the  same  in  the  absence  of  a  warehouse  receipt,  and  this 
right  is  not  taken  from  him  by  the  statute.     The  character  of  symbol 
that  would  in  construction  of  law  pass  the  possession  to  one  making 
-an  absolute  purchase  would  pass  the  possession  to  a  party  holding  the 
property  in  pledge  to  secure  the  payment  of  a  debt.     Ibid.     Ware- 
housemen's receipts  are  negotiable  and  transferable  by  indorsement  in 
blank,  or  by  special  indorsement,  the  indorsers  being  liable  as  are  in- 
•dorsers  of  bills  of  exchange.     Ibid. 

3535.  No  one  can  obtain  the  propert}7  but  the  bolder  of  the  receipt, 
unless  he  produces  the  written  consent  of  the  holder  as  well  as  the  re- 
ceipt itself;  and  as  to  property  owned  by  the  warehouseman,  for  which 
he  gives  a  receipt,  he  can  assert  no  claim  or  set-off  as  against  the 
.holder,  unless  the  receipt  on  its  face  shows  such  right  to  exist.     Ibid. 

3536.  The  right  to  pledge  or  pawn  goods  as  a  securitj*  for  the  pay- 
ment of  a  debt  existed  independently  of  the  statute,  and  was  made  to 
rest  upon  the  doctrine  of  the  common  law.     It  is  a  bailment  of  per- 
sonal property  only,  and  the   right  in  the  bailee  or  pledgee  is  never 
consummated  until  the  latter  has  possession  of  the  property.     Ibid. 


484  MONROE'S  DIGEST 


WARRANTY. 

3531.  A.,  by  a  contract  in  writing,  pledged  to  B.  certain  tobaccor 
reciting  that  it  was  A.'s  u  own  property,  and  free  from  all  incumbran- 
ces  and  all  of  the  crop  "  of  a  certain  year.  B.  borrowed  money  of  C.r 
and  delivered  the  tobacco  to  him  and  gave  him  an  assignment  of  all  his 
"  right,  title  and  interest  in  and  under  the  contract,  together  with  all 
the  property  therein  mentioned."  Held,  that  there  was  no  implied 
warranty  of  title  to  the  tobacco  or  of  its  quality,  between  B.  and  CL 
National  Sank  of  Northampton  v.  Mass.  Loan  and  Trust  Co.,  123 
Mass.  330. 

3538.  Breach  of  warranty  may  be  set  up  as  a  defence  without  re- 
turning the  goods,  unless  the  contract  of  sale  expressly  requires  their 
return.     The   omission   to  return  them  only  affects  the   amount    of 
damages  recoverable.     Where  goods  were  sold  with  warranty,  and  the 
defence  to  an  action  for  part  of  their  price  was  grounded  on  a  breach 
thereof,  an  inquiry  as  to  whether  part  of  the  goods  were  sound  that- 
had  been  returned  as  unsound,  was  relevant  on  the  cross-examination 
of  the  plaintiff,  who  had  testified  as  to  the  contract  and  its  perform- 
ance.    Hull  v.  Belknap,  et  aZ.,37  Mich.  179. 

3539.  Warranty  implied  on  the  part  of  the  Vendor  of  a  Bond  or 
other  Security,  that  it  is  a  valid  and  subsisting  security  for  the  amount 
expressed.     Defendant  sold  and  assigned  to  plaintiff  a  bond  and  mort- 
gage which  were   usurious  and  void.     Defendant  was  personally  con- 
cerned in  the  making  of  them  and  in  the  unlawful  acts  which  vitiated 
them.     Held,  that  there  was  an  implied  warranty  on  the  part  of  de- 
fendant  of  the  validity  of  the  bond  and  mortgage,  for  the  breach  of" 
which  he  was  liable.     Defendant  executed  a  warranty  of  the  validity 
of  the  mortgage.     Held,  that  as  the  bond  was  the  principal  debt  upon 
which  the  mortgage  was  dependent,  if  the  bond  was  invalid  the  mort- 
gage  also ;  and  therefore  that  the  warranty  was,  in  effect,  that  the 
bond  as  well  as  the  mortgage  was  valid,     Ross,  Eespt.  v.  Terry,  Applt.r 
N.  Y.  Reports,  18  Sickels,  613. 

3540.  Where   L.  purchased  of  R.  a  certain  number  of  barrels  of 
rosin,  under  the  following  contract,  viz  :     "  Received  of  L.  $700  in  part 
payment  of  500  barrels  of  strained  rosin,  to  be  delivered,  etc.,"  and 
thereupon,  at    the   place   of  delivery,   L.   examined   and  selected  the 
number   of  barrels  purchased  from  a  lot  of  barrels  largely  in  excess 
of  the  amount  purchased ;  and  the  barrels  so  selected  afterwards  proved 
in  a  great   measure  not  to  be  "  strained  rosin  :  "  it  was  held,  that  the 
agreement   of  R.  to  deliver,  etc.,  amounted  to  a  warranty  on  his  part, 
that   the  rosin    received  by  L.  should  be  strained  rosin.    In  such  case, 
the  fact  that  L.  had  an  opportunity  to  inspect  the  rosin  before  or  when 
it  was  delivered,  and  did  in  fact  select  the  particular  barrels  purchased, 
did   not   amount   to  a  waiver  of  the  warranty  that  they  should  be  of 
the  specific  description.     Where  goods  are  warranted  to  come  within  a 
specific  description,  the  vendee  is  entitled,  although  he  does  not  return 
them  to  the  vendor  or  give  notice  of  their  failure  to  come  within  the 
description   warranted,  to  bring   an   action   for  breach  of  warranty. 
Lewis  v.  Rountree,  78  N.  C.  323. 

3541.  Where  certain  county  warrants  were  sold  by  a  citizen  of 


OF  STANDARD   DECISIONS.  485 

Iowa,  where  they  were  issued,  to  a  citizen  of  another  State,  with  a 
guaranty  that  they  were  "  genuine  and  regularly  issued," — Held,  that 
the  former  thereby  undertook  that  they  were  not,  in  suit  brought 
Against  the  county,  subject  to  any  defence  founded  upon  a  want  of 
legal  form  in  the  signature  or  seals ;  and  that,  the  absence  of  the 
county  seals  being  a  breach  of  the  warranty,  the  vendee,  without  re- 
turning or  tendering  the  warrants,  was  entitled  to  recover  of  the  ven- 
dor the  damages  which  he  had  sustained  by  such  breach.  Smeltzer  v. 
White,  92  U.  S.  390. 

3542.  Where  there  is  a  warranty  of  quality  on  sale  of  goods  the 
vendee  may  receive  and  retain  the  goods  and  recoup  or  recover  dama- 
ges for  any  breach  of  the  warranty,  or  he  may  return  the  goods  and 
plead   a  rescission  of  the  contract  as  a  defence  to  an  action  for  their 
price.     Norton  v.  Dreyfuss,  106  N.  Y.  90. 

3543.  It  seems,  however,  the  purchaser  may  not  in  the  same  ac- 
tion sustain  a  claim  of  a  return  of  the  goods  and  rescission  of  the  con- 
tract, and  also  for  damages  for  breach  of  the  warranty.     Ibid. 

3544.  Under  authority  of  acts  of  the  legislature  of  Kansas,  the 
city   of    Topeka   issued  certain  bonds  payable  to  a  party  named,  or 
bearer.     Thejr   became  the  property  of  a  bank,  which  put  them  upon 
the  market,  and  disposed  of  them.     This  court  decided  that  the  legisla- 
ture had  no  power  to  pass  the  acts,  and  that  the  bonds  were  void,  the 
purchasers  brought  suit  on  the  ground  of  failure  of  consideration  tore- 
cover   the  amount  paid  for  them.     Held,  that  as  the  bank  gave  no 
warranty,  it  cannot  be  charged  with  a  liability  it  did  not  assume.     Otis, 
et  al.  v.  Cullon,  Receiver,  92  U.  S.  447. 

3545.  The  vendor  of  such  securities  is  liable  ex  delicto  for  bad  faith, 
and  ex  contractu  there  is  an  implied  warranty  on  his  part  that  they 
belong  to  him,  and  are  not    forgeries.     When   there   is  no   express 
stipulation,  there  is  no  liability  beyond  this.     Ibid. 

3546.  The  first  section  of  the  Act  of  Congress  of  1870,  ch.  59,  es- 
tablishes the  legal  rate  of  interest,  in  the  District  of  Columbia,  at  six 
per  cent.     Section  2  permits  parties  to  stipulate  in  writing  for  any  rate 
not  exceeding  ten  per  cent.     Section  3  forfeits  the  whole  interest  un- 
der any  parol  contract  providing  for  a  greater  rate  than  six  per  cent,  or 
written   contract  stipulating  for   more  than  ten  per  cent.     Section  4 
provides  for  the  recovery  of  all  the  interest  paid,  when  more  has  been 
exacted  than  allowed  by  the  act,  provided  suit  to  recover  the  same  be 
brought   within   one   year   after   such    payment.     In   an   attachment 
brought,  in  Maryland,  by  K.  against  E.,  as  a  non-resident,  E.,  among 
other*pleas  pleaded,  was  that  of  set-off;  that  the  plaintiff  was  indebted 
to   him  for  money  paid  the  plaintiff  on  account  of  usurious  interest ; 
and  proved  that  he  had  paid  the  amount  of  the  set-off  to  the  plaintiff, 
for   usurious  interest  upon  loans  made  in  the  District  of  Columbia, 
where  both  parties  resided.     Said  payments  were  made  more  than  one 
year,  but  most  of  them  within  three  years  before  the  plea  filed.    Held, 
(1)  That  a  prayer  offered  by  the   defendant  asserting  his  right  to  re- 
cover the  excess  above  six  per  cent,  paid  by  him,  but  failing  to  submit 
to  the  jury  to  find  that  the  loan  was  upon  a  verbal  contract  only,  was 
bad.  (2)     That   the  right  to  recover  for  the  illegal  interest,   being 
given  by  the  Act  of  Congress,  must  be  subject  to  the  terms  prescribed 
by  that  Act,  as  to  the  time  within  which  the  right  must  be  asserted* 


486  MONROE'S  DIGEST 

(3)  That  the  sums  paid  by  the  defendant  in  the  District  of  Columbia,, 
more  than  one  year  before  the  account  in  bar  was  filed,  could  not  be 
abated  from  the  plaintiff's  claim.  Eastwood  v.  Kennedy,  44  Md.  563, 

3547.  A  warranty  of  title  is  implied  in  a  contract  of  exchange,  the 
same  as  in  a  contract  of  sale.     Patee  v.  Pelton,  48  Vt.  182. 

3548.  When  goods  have  been  sold  with  a  warrant}'  of  quality,  and 
those  delivered,  though  inferior  to  the  stipulation,  are  retained  by  the 
vendee,  the  latter  may  either  pay  the  price,  and  have  his  action  for  the 
breach  of  warranty,  or  he  may  recoup  his  damages  in  the  vendor's  ac- 
tion for  the  price.     Smith,  et  al.  v.  Mayer,  et  al,,  3  Colo.  207. 

3549.  If  the  goods  delivered  to  the  buyer  are  inferior  in  quality  to- 
that  which  was  warranted  by  the  vendor,  the  buyer  may  refuse  to  ac- 
cept  the   goods,  and  return  them ;  and  while  in  his  charge,  or  pos- 
session, he  is  certainly  not  liable  for  injury  to  the  goods,  resulting  from- 
no  want  of  due  care  on  his  part.     Bigger  v.  Bovard,  20  Kansas,  204. 

3550.  A  vendor  impliedly  warrants  goods  sold  by  him,  without  any 
opportunit}r  of  inspection  on  the  part,  of  the  buyer,  to  be  of  a  merchant- 
able  quality,   and   reasonably    fit  for   the  purpose  intended  ;  and  if, 
when  the  goods  are  delivered  to  the  buyer,  the}'  are  unmerchantable 
and   unfit  for  use,  ^he  buyer  may  return  them,  without  unnecessary 
delay,  and  rescind  the  contract.     Ibid. 

3551.  Where  the  evidence  showed,  without  conflict,  that  a  written 
warranty  was  given  by  vendor  to  vendee,  the  latter  could  not  recover 
for  the  breach  of  an  additional  parol  warranty.     Shepherd  v.  Gilroyr 
el  al,  46  Iowa,  193. 

3552.  The   words  "  grant "   and  "  demise  "   in   a  lease  for  years- 
create  an  implied  warranty  of  title  and  a  covenant  for  quiet  enjoyment. 
Stott,  et  al.  v.  Rutherford,  92  U.  S.  1 07. 

3553.  Warrantor  is  bound  by  printed  signature  which  he  adopts  as- 
his,  as  fully  as  if  it  were  in  his  handwriting.     Grieb  v.  Cole,  60  Mich. 
397. 


WRITTEN  INSTRUMENTS. 

3554.  Courts  must  interpret  written  instruments,  but  they  follow 
the  meaning  attributed  to  the  terms  by  those  whose  custom  it  is  to  use 
them.     Where  a  cqntract  may  have  two  interpretations,  courts  will 
follow  that  which  the  parties  have  put  upon  it  and  cited  upon.     Gass1 
et  al.,  appeal,  73  Penn.  St.  39. 

3555.  An  agreement  for  the  sale  of  personal  property  at  a  price 
not  less  than  fifty  dollars,  is  void  under  our  statute  of  frauds,  unless- 
the   same,  or  some  note  or  memorandum  thereof  expressing  a  consid- 
eration, be  in  writing,  and  subscribed  by  the  party  to  be  charged.     A 
promise  made  by   one   party   without  a   corresponding  obligation  or 
promise  by  the  other  party  is  void.     Corbitt  v.  Salem  Gaslight  Co.,  6> 
Oregon,  407. 


INDEX  TO  CASES. 


indicate   paragraph*. 


Table  of  Cases  on  page  571. 
Table  of  Abbreviations,  page 


ABATEMENT  AND  REVIVAL,  Page  5. 
PARAGRAPH. 

Action  abates  when  defeated  ....        2 
Revival  of  an  action 1 

ACCEPTANCE,  Page  5. 
Acceptance  cannot  be  invalidated  after 

mailing 9 

of  lesser  sum 8 

of  promise  to  pay 3 

As  accommodation 18 

Binding  as  soon  as  acceptance  letter 

is  mailed 5 

in  case  of  conflict  of  laws  .  .  17 

when  meets  and  corresponds 

with  offers  by  mail 5,  6,  7 

when  letter  is  mailed  ...  5 


By  acting  on  offer 13, 24 

Cannot  be  countermanded  by  mail  .  9 
Contracts    made    by   mails    or   tele- 
graph    16 

Corrections  limited  as  to  time  ...  21 
Counter  proposition  destroys  vitality 

of  offer 4 

cannot  be  withdrawn  ....  4 

Departure  from  terms  of  offer  invali- 
dates it 7 

Draft  presented  to  payee  with  accept- 
ance on  it 18 

Evidence  of  a  balance  due 21 

Fraud  justifies  reopening 23 

Invalidation  of  offer 7 

Offer  acted  upon  without  communi- 
cation    13 

between  persons  present  .  .  10 

by  mail  may  be  revoked  .    .  6 

Order  for  lottery  tickets  or  other  ar- 
ticle               ...  17 

Proposal  to  accept  an  offer  on  vary- 
ing terms 4 

To  be  binding  must  agree  with  offer,  4 
Verbal  acceptance  of  an  order  ...  8 
Where  a  guaranty  is  subsequent  to 
the   contract   between  the  prin- 
cipal and  guarantee 10,  16 


PARAGRAPH. 

Without  condition,  limitations  or  pro- 
visions          4 

ACCOMMODATION,  Page  5. 


ACCOUNT  STATED,  Page  7. 

Account  stated  is  presumptive  evi- 
dence of  a  balance  admitted  to 
be  due 21 

An  account  delivered  where  the 
debtor  neither  confirms  nor  ob- 
jects to  it 19 

Fraud,  misstate  or  manifest  error  jus- 
tifies the  opening  of  an  account 
stated 23 

May  be  corrected  for  fraud  or  mistake,     21 

Mere  rendering  of  an  account  does 

not  make  it  an  account  .  .  .  20-139 

Monthly  balances  are  not  distinct  set- 
tlements, but  the  whole  is  merely 
a  running  account 22 

Omission  to  object  to  an  account  raises 

only  a  presumption  of  assent .  .  20 

Parties  may,  by  agreement,  limit  time 

in  which  correction  may  be  made,  21 

Presumptive  evidence  of  amount  due,     21 

Verbal  acceptance  of  officials  is  bind- 
ing   3 

Where  the  debtor  disclaims  all  liabil- 
ity    19 

ADMINISTRATORS,  Page  8. 

Administrator's  written  acknowledg- 
ment of  a  debt 24 

Administrator  cannot  avail  of  any  de- 
fect in  a  legal  proceeding  caused 
by  his  fault 24 

ADMISSIONS    AND   DECLARA- 
TIONS, Page  8. 

Admissions  contradicted,  raise  a  ques- 
tion of  fact  for  a  jury 28 

(487) 


488 


INDEX   TO   CASES. 


PARAGRAPH. 

Cannot  avail  himself  of  legal  defects,        24 

Declaration  after  delivery  of  as- 
signed property 25-27 

of  assignor  for  benefit  of 

creditors 25 

Effect  of  the  admission  of  a  party,         28 

Mere  fact  of  joint  liability  does  not 

give  authority 26 

One  joint  debtor  cannot  bind  an- 
other by  his  statements.  ...  26 

Title  to  a  negotiable  note  cannot 
be  affected  by  declarations  of 
assignor 27 

ADVICE  OF  COUNSEL,  Page  8. 

Acting  in  good  faith  and  without 
gross  negligence  when  advis- 
ing with  counsel 30 

Advice  will  not  protect  the  culpa- 
ble neglect  of  any  one  ....  31 

Agreements  forbidden  by  law  ex- 
pressly or  by  implication  .  137-139 

Arresting  another  under  advice  of 

counsel 29 

Must  not  withhold  impoftant  in- 
formation, etc 30 

Must  act  in  good  faith  with  counsel,         30 

Need  not  show  that  an  attorney  is 

skilled  in  his  profession  ...  29 

Non-member  of  a  firm  promise  to 

pay  part  of  debt 141 

Party  who  culpably  or  negligently 
withholds  from  counsel  any 
material  fact 31 

Person  seeking  legal  advice  as  to 

criminal  prosecution  ....  30 

Promise  to  pay  balance  of  purchase 

money 140 

When  party,  in  good  faith,  consults 

with  a  licensed  lawyer  .  .  29 

Where  an  arrest  is  required  to  make 

a  bill  rendered  binding .  .  .  19-23 

Where  counsel  advised  with  is  al- 
ready conversant  with  facts  .  .  31 

AGENTS,  Page  8. 

Acting  within  his  powers  may  be- 
proved  in  a  criminal  as  a  civil 
case 91 

Action  maintained  against  an  agent 

on  a  contract  executed  by  him  .  46 

Admission  of  agent  on  his  author- 
ity    43 

Adverse  interest  of  agent  to  his  prin- 
cipal    92 

Agent   acting   through  subagent  .          89 

authorized  to  make  and  in- 
dorse notes  in  the  business  of 
the  testator 84 

in  foreign  country  same  as 

agent  at  head  office 63 


PARAGRAPH. 
Agent  of  undisclosed  principal  .  .          51 

to  loan  money 32 

Agent's  act  being  necessary  to  ob- 
ject   \  .  ...  44 

authority,  not  coupled  with 

interest 66 

power  to  manage  business,        62 

sale  of  goods  with  an  inter- 
est in  the  proceeds 76 

Alteration  of  an  instrument  unau- 
thorized makes  it  void  .    .    .         102 
Assignee  or  trustee  cannot  speculate 

with  assigned  property      .    .  78 

Authority,  in  a  general  sense,  cannot 

be  delegated HO 

of  agent  to  sell  land  ...          59 

to  act  as  "  business  and  finan- 
cial agent " 54 

to  adjust  a  particular  loss  .          58 

to  contract  for  another  .    .          61 

to   draw   bills  anywhere  .          87 

to  invest  money 52 

Cannot  act  as  agent  for  both  seller 

and  buyer 

bind  principal  by  a  submis- 
sion to  arbitration  unauthor- 
ized   

Cashier  may  libel  vessels  for  non- 
delivery    90 

Care  in  selecting  subagents  .    .    .        112 
Clerks  of  an  agent  are  not  agents 

of  principal 55 

Conditional  authority  and  limita- 
tion of  authority 83 

Continuous  agency  of  a  long  series,        74 
Contract  executed  by  agent  for  prin- 
cipal            46 

Converts  property  of  a  third  party 

to  his  own  use 94 

Dealing  with  agent  without  notice, 

after  his   recall 34 

Declarations  of  agent  at  time  of 

draft 86 

of  agent  may  bind  principal,         57 


40 


103 


Deduction  of  par  value  of  U.  S. 

bond  from  taxes 100 

Defendant  claims  goods  were 

bought  for  a  third  person  .  .  33 

Employed  for  an  indefinite  period,         93 

Endorsing  drafts  and  selling  them 

unauthorized 95 

Entre  of  amount  due  on  note  for 

collection '.  .  133 

Fraudulently  selling  his  principal's 
property  and  embezzling  its 
proceeds 45 

Good  faith  does  not  exonerate  lia- 
bility of  agent 48 

Goods  sold  to  a  third  person  ...          33 

Government  not  bound  by  act  or 

declaration  of  its  agent  always,  106 


INDEX   TO   CASES. 


489 


PARAGRAPH. 
Illegal  acts  of  agent  does  not  bind 

principal 41 

Inference  as  to  authority  of  an 

agent  .  .  .  .  _ 37,38 

Instrument  delegating  powers  .  .  77 
Legal  currency  only  can  be  received 

by  an  agent  except  by  special 

authority 97 

Money  borrowed  by  agent  on  credit 

of  principal 60 

loaned  by  agent  who  retains 

the  securities 73 

trusted    to    settle   lawsuit, 

without  consideration  ....          72 

Negotiable  instrument  intrusted  to 

another  for  use 101 

Not  bound  to  account  to  principal 

until  the  time  filed  or  a  demand,  99 

Notice  must  be  taken  of  the  extent 

of  official  acts 107 

•  to  agent  in  discharge  of  his 

duty 53 

'  to  agent  is  notice  to  prin- 
cipal    64 

Not  permitted  to  profit  by  his  negli- 
gence    36 

Order  for  goods  in  which  defend- 
ant's name  appeared  ....  33 

to  sell  securities 35 

Orders  of  agents  to  factors  ...  47 
Ordinary  business  of  a  corporation,  54 
Paper  must  be  presented  at  the 

proper  place  for  payment  .    .         113 

received  for  collection  .    .  113-130 

Partner,  after  dissolution,  cannot  ex- 
tend liability 49 

Parol  testimony  as  to  attorney's  acts,         47 
Payment  to  agent  for  goods  deliv- 
ered            70 

of  collections  by  collectors  .        132 

Payments  made  to  an  unauthorized 

agent 56 

Person  acts  by  an  agent  the  act  is 

his 42 

Power  to  accept  bills  for  principal,        69 

. of  attorney  "  to   whom   it 

may  concern  " 82 

to  sue  for  specific  debt  .    .          88 

Powers  usually  exercised  by  agents,  37 
Principal  always  bound  by  acts  and 

neglects  of  his  agent  ...  65 

•  estops  himself  from  recourse 
against   innocent   purchaser  .          45 

may  still  hold  the  agent  .  32 

accepting  part  pay  for  em- 
bezzled proceeds 45 

-^— —  dealing  through  an  agent 
under  written  power  of  attor- 
ney    47 

Purchaser  of  bankrupt  stock  left  in 

hand  of  seller 81 


PARAGRAPH. 
Purchaser  dealing   with    an   agent 

without  knowing  he  is  such    .         68 
Purchasing  goods  at  half  their  value,         71 
Ratification  of  an  unauthorized  act,       136 
Refusal  of  agent  to  return  securi- 
ties to  principal 104 

Responsibility  of  collectors  to  each 

other 134 

Sale  of  bonds  ordered  to  be  collected 

void 50 

Skill  and  knowledge  must  be  exer- 
cised by  agents 108 

Simple  contract  by  authorized  agent 

in  his  own  name,  as  agent  .    .        105 
Special    instructions    must    be   re- 
garded  in   every  particular  .        109 
Statements  of  agent  when  selling  a 

note   ...        75 

Subagents  when,  may  be  employed,       HI 
Surplusage  words  as  agency  ...          46 
Treasurer  may  delegate  a  clerk  to 
indorse  drafts  belonging  to  the 

treasury 96 

Unauthorized  acts  of  an  agent  only 
become  binding  on  principal 
after  ratification  upon  full 

knowledge 39 

Unauthorized  agent's  acts  ....          39 
Unconditionally  accepting  drafts.  .          85 
Unindorsed  note  payable  to  another,         80 
Value  of  goods  sold  by  agent  con- 
trary to  his  instructions  ...          98 

AGREEMENTS,  Page  23. 

Agreements  forbidden  by  law,  ex- 
pressly, impliedly,  or  against 
public  policy 137 

Agreement  signed  by  a  majority  of 

insolvent's  creditors 205 

Commissions  agreed  to  be  paid 
agent  by  life  insurance  com- 
pany    ....  142 

Court's  discretion  as  to  complaint  of 

the  judgment 149 

Creditor  of  a  firm  action  on  an 
agreement  made  with  the  firm 
by  one  not  a  member  ....  141 

Debtor  upon  whose  obligations  of 

interest  are  unpaid 139 

Overpayment  upon  a  contract 

after  commencement  of  action,  150 

Parol  promise  to  pay  balance  of 
purchase  money  due  under 
articles  of  agreement  ....  140 

Supplemental  answer 150 

ALTERATIONS  OF  INSTRUMENTS, 

Page  24. 

Alteration  of  agreement  under  agree- 
ments   143 

of  note  after  delivery  .    .  144-148 


490 


INDEX   TO   CASES. 


PARAGRAPH. 

Appeals  from  a  judgment   ...        151 
Arrests    insufficient    to    pay    judg- 
ment •••.......        158 

Averment  that  a  note  was  materi- 
ally altered  after  delivery  by 

plaintiff 144 

Change  of  the  form  of  a  paper  after 

assignment 241 

Changing  date  of  a  note  after  de- 
livery   148 

Collateral   given   without  property 

instructions 186 

Fraud  charged  not  sustained  .  .  .  154 
Harmless  overruling  of  courts  .  .  174—178 

Indorsing  a  blank  paper 146 

Injunction  order  restraining  action,       157 
Insertion    of  "  with    interest,"   or 
otherwise  increase  the  value  of 

a  note 145 

Jurisdiction  of  Supreme  Court   on 

appeals 163-173 

Lien  of  judgment  on  real  estate    .         153 
Money  applied  pro  rata,  or  other- 
wise         188 

Partnership  articles  prohibiting  one 
partner  indorsing  negotiable 

paper 147 

Payment  on  a  certain  debt,  ordered 

by  debtor 185 

AMENDMENTS,  Page  26. 
Adding  new  cause  of  action  .    .    .        149 
Claiming  a  judgment  for  an  over- 
payment         150 

Complaint  after  judgment  ....  149 
Lunacy  case  of  supersedes.  .  .  .  161 
Order  of  arrest  is  a  provisional 

remedy 180-184 

Overpayment   made   after  the  suit 

was  commenced 150 

Question  not  presented  on  trial  .  .  155 
Upon  the  trial  of  an  action  upon  a 

contract 150 

Vacating  a  judgment  to  amend  .  .  152 
Where  an  overpayment  may  be 

made  a  counterclaim  ....        150 

APPEAL,  Page  25. 

Action    to  recover  money  extorted       178 

.  set  forth  in  a  complaint  is  a 
fraud  and  action  tried  upon 
that  theory 154 

After  satisfaction  of  a  judgment  in 

favor  of  plaintiff  to  vacate  it  .  152 

Amending  complaint  by  adding 

new  courses  of  action  ....  152 

Appeal  from  and  order  vacating  an 

order  of  arrest 181 

Appellate  court's  power  to  decide 
questions  of  fact  which  a  sur- 
rogate had 171 


PARAGRAPH, 

Assuming  that  an  appeal  was  for 

some  error  of  law 167 

Attorney  employed  by  a  lunatic  .  .        161 

Bond  required  by  statute  on  an 

action  on  lost  note  ....  184 

Copying  plaintiff's  bonds    ....        172 

Costs  of  appeal  when  in  discretion 

of  court 175- 

Court  cannot  by  the  mere  pr9cess  of 

vacating  its  orders  destroy  liens,  153- 

Death  of  a  party  after  making  an 

order 161 

Decision  of  surrogate  on  facts  aris- 
ing on  conflicting  evidence.  .  17Q 

Entry  of  an  order  of  discontinu- 
ance on  rilling  stipulations  .  .  160" 

Erroneous  evidence  is  received  to 

prove  a  will 166 

ruling  evidently  harmless  .        174 

Error  in  the  admission  or  exclusion 

of  evidence 173 

From  a  judgment  entered  on  a  de- 
cision of  report  of  referee.  .  .  177 

Injunction  restraining  officers,  etc., 

from  doing  certain  acts  .  .  .  157 

Insufficiency  of  the  amount  in 

controversy 156" 

Judgment  taken  on  merits  without 

filing  replication 243 

that  reduces  and  limits  the 

number  of  creditors  upon  a  fund,  151 

Motion  by  a  junior  mortgagor  in  an 

action  of  foreclosure  ....  179" 

Of  trustee  of  a  fund  for  security  of 

an  indebtedness  due  to  others,  151 

Opinion  of  lower  court  as  to  the 

basis  of  its  action 183- 

Order  of  reference  to  take  proof  as 

to  charges  against  an  assignee,  201 

of  arrest  is  a  provisionary 

remedy 180» 

vacating  an  order  of  suspen- 
sion    153- 

Protection  against  a  collusive  settle- 
ment    .  160 

Question  not  presented  on  trial .    .         155- 

whether  there  is  sufficient 

cause  for  action 154 

Reduction  of  the  sum  of  costs  and 

notice  of  the  fact 159' 

Release  of  a  cause  of  action  after 

the  commencement  of  suit  .  .  1601 

Requiring  ten  days'  notice  to  "  ad- 
verse party,"  etc 159- 

Reversal  by  showing  an  error  in 

law 168,169- 

Reviewing  order  allowing  counsel 

fees 176 

Unless  special  provisions  authoriz- 
ing a  review  of  a  question  of 
facts,  etc 163-166 


INDEX    TO    CASES. 


491 


PARAGRAPH. 
When  lien  of  a  judgment  on  real 

estate  has  been  suspended  .  .  153 
.  sufficient  arrests  did  not 

come  to  the  hands  of  executors,      158 

APPLICATION   OF  PAYMENTS, 
Page  29. 

Agreement,  by  debtors,  to  pay  each 
his  portion  of  their  joint  in- 
debtedness    187 

Creditor  applies   payment   to   suit 

himself 185 

Debtor's  assignment  of  property  as 
collateral  generally  without  dic- 
tation    186 

Directing  payment  to  a  particular 

claim 185 

Money  collected  by  sale  of  collat- 
eral to  secure  several  claims  .  187 

Securities  to  be  returned  to  debtor 

when  certain  balance  was  paid,       188 

When  money  should  be  paid  pro 

rata  to  creditors  .....        188 

— —  neither  the  debtor  nor  the 
creditor  possess  the  right  ap- 
plication of  payments  ....  187 

ASSIGNMENTS,  Page  31. 

Account  may  be  assigned  by  oral 

agreement 235-238 

may  be  assigned  the  same 

as  a  chattel 219 

Accounting   for  items  for   receipts 

and  disbursements  of  assigned  , 

property 215 

Action  brought  by  assignee  in  his 
own  name,  omitting  to  mention 
it  was  for  benefit  of  others  .  .  213 

Agreement  signed  by  a  majority  of 
creditors  of  an  insolvent  on 
conditions 205 

Assignee  for  the  benefit  of  creditors 
is  merely  a  representative  of 
the  debtor 231 

— — —  for  the  benefit  of  creditors  is 

liable  for  ordinary  negligence,       214 

of  a  mortgage,  after  condi- 
tion broken.being  in  possession,  198 

of  stock,  in  due  form,  and 

notice  to  company 195 

"  Assignee  shall  take  possession  of 
property,  sell  at  public  or  pri- 
vate sale  " 206 

Assignment  invests  title  to  property 

in  the  assignee 207 

under  seal  and  duly  record- 
ed, of  wages,  to  secure  corpo- 
ration    193 

Although  bond  and  mortgage  is 
transferred  by  delivery,  inten- 
tion so  to  do  must  exist  .  .  .  217 


PARAGRAPH. 

Authority  to  assign  a  mortgage,  im- 

pliedly,  includes  the  bonds  .  .  222 

Authorizing  assignee  to  "  collect 
notes,  accounts  and  choses  in 
action" 203- 

— —  the  assignee  "  to  compro- 
mise with  the  creditors  "..  .  204 

Averment  that  "  the  defendant  is 

indebted  to  plaintiff,  etc."  .  .  249 

Bankrupt  proceedings  bars  an  ac- 
tion for  the  conversion  of  se- 
curities    221 

Being  free  from  fraud,  will  not  be 

avoided,  etc 209 

By  virtue  of  and  under  a  foreign 

law 196 

Cannot  be  inquired  into  by  third 

parties 224 

Certificate  of  assigned  as  security 
for  the  payment  of  any  de- 
mands    239* 

Chattel  mortgages  covering  more 
than  assigned  property  was 
worth 215- 

Creditor  failing  to  file  his  claims 

within  three  months 199 

Creditors  selling  personal  property, 
under  execution,  that  had  been 
assigned 205- 

Commission  not  allowed  to  assignee 

on  mortgaged  property  .  .  .  216* 

Declarations  of  assignor  of  a  chose 
in  action,  do  not  prejudice  title 
of  assignee 211 

of  vendor  do  not  affect  the 

title  of  his  vendee 21 2~- 

Draft  does  not  always  converted  in- 
to an  assignment  of  the  fund 
drawn  against 228 

upon  a  particular  fund  to 

accrue  in  future 229,  2301 

Duly  placed  in  the  office  of  recorder 
of  deeds  of  proper  county  with- 
in due  time 207 

Empowering  assignee  to  collect 
"  choses  in  action,  with  right 
to  compound,  etc." 202" 

Every  person  is  chargeable  with  no- 
tice of  bankruptcy,  legally  con- 
ducted    210 

Fraudulent  preference  given  by  a 

chattel  mortgage 218- 

For  the  benefit  of  creditors  rests 
title  forthwith,  though  assignee 
is  ignorant  of  the  assignment  ..  207" 

Giving  preference  is  void  under  the 

Bankrupt  Act 194 

Insolvent  debtor  may  assign  all  his 
property  for  the  benefit  of 
his  creditors  and  make  prefer- 
ences .  .  20S 


492 


INDEX   TO   CASES. 


PARAGRAPH. 

May  be  made  by  oral  agreement, 

without  writing 235 

Notice  of  action  brought  for  the  col- 
lective benefit  of  creditors  .  .  213 

Not  recorded  within  thirty  days .  .        205 

Of  a  debt  carries  with  it  in  equity 

an  assignment  of  a  judgment,       200 

Of  a  note  before  maturity,  indi- 
cates a  want  notice  of  any  de- 
fence to  it 226 

Of  a  portion  of  a  debt,  orally,  is 

valid 236 

Of  an  attorney's  receipt  of  a  claim 

for  collection 225 

Of  personal  property  after  cause  of 
action  for  conversion  thereof 
has  accrued 224 

Of  property  made  by  a  bankrupt 
to  a  creditor,  who  had  reason- 
able cause  to  believe,  etc.  .  .  223 

Omission  to  include  claims  in 
an  inventory  at  time  of  assign- 
ment    197 

Order  drawn  for  a  valuable  consid- 
eration upon  a  third  person, 
etc 227 

Order  made  payable  out  of  a  par- 
ticular fund 227,  228 

Power  of  attorney  authorizing  the 

assignment  of  a  mortgage   .    .         222 

Property  assigned  cannot  be  reached 

on  attachment 241 

Reasonable  cause  to  believe  "  as- 
signee insolvent " 223 

Record  of  an  assignment  is  construct- 
ive notice 233 

Record  of  assignment  of  a  mort- 
gage    233 

Right  to  proceed  without  the  ap- 
pointment of  an  administrator,  234 

Surety  in  a  bond,  under  tender  of 

the  debt 192 

To  be  void   unless  signed   by  all 

creditors 205 

Unauthorized  use   of  property  by 

assignee 215 

Where  an  assignment  will  be  de- 
clared void 204 

creditor  can  successfully  op- 
pose granting  of  discharge  un- 
der bankruptcy 220 

refusal   to   assign  bond  to 


surety   is   a  discharge   of  the 

surety 192 

When  dates  shall  be  taken  as  most 

advantage  of  the  defendant    .        191 

ASSUMPSIT,  Page  38. 
Cannot  be  brought  for  the  value  of 
goods  held  under  a  mortgage 
lien    .  240 


Lies  only  on  ownership  .        .    . 
Mortgaged  goods  taken  to  satisfy  a 
claim 


PARAGRAPH. 
240 


240 


ATTACHMENT,  Page  38. 
Action'  of  a  judgment  creditor  to 

stay  proceedings 253 

upon    an    undertaking   to 

discharge  an     .    .  .    .        270 

Affidavit  must  show  plaintiff"  is  en- 
titled to  recover  a  sum  stated 
therein" 249 

upon  application  to  vacate 

an  attachment,  etc 250 

Against  National  Banks  under  state 

laws 264 

Attaching  creditor  cannot  defend  an 
action,  brought  by  an  assignee 
of  debtor  ...  258 

Averment,  that  "  the  defendant  is 
indebted  to  plaintiff  in  sum 
stated" 249 

Builder's  lien,  where  real  estate 
security  for  work  done  was 
given  and  surrendered  for  a 
note 265 

Cannot  be  issued  against  non-resi- 
dent firm 242 

Certification  of  check  and  its  effect 
upon  an  attachment  against 
fund  in  bank 252 

Debt  created  by  a  word  where 

debtor  resides 246 

that  has   been  legally  at- 
tached          251 

Decree  made  by  a  surrogate  may 

be  enforced  under  attachment,  267 
Defendant  about  to  assign,  dispose 

of,  secrete  their  property,  etc.,  248-261 
Inaction  of  debtor  after  attachment,  251 
Insufficiency  of  affidavits  issued  .  244 
Issued  against  a  non  resident  firm,  242 
Legal  title  necessary  to  establish 

lien 247 

Levy  by  virtue  of  an  attachment 

upon  a  promissory  note  .  .  .  247 
Mere  levy  under  execution  upon  of 

attached  property 268 

Money  arising  from  assigned  claims,       241 
Order,  on  motion  of  attaching  cred- 
itor    against    person    holding 
property 245 

to     deliver    property     to 

sheriff 245 

Person  having  a  lien  upon  prop- 
erty attached  acquired  subse- 
quent to  attachment  ....  244 

Property  assigned  and  its  form 

changed .  241 

assigned  cannot  be  reached 

on  attachment  .  241 


INDEX   TO   CASES. 


493 


PARAGRAPH. 

Publication  of  a  notice  of  attach- 
ment    254 

Right  to  apply  to  vacate,  or  modify,      260 

Rule  prohibiting  the  splitting  up  a 

single  demand,  etc.  ....  266 

Seizure,  by  sheriff,  of  firm's  prop- 
erty, under  an  attachment 
against  one  person  .  .  .  255-257 

Statute  must  be  strictly  followed,  in,       242 

Void  sale  of  goods,  for  want  of  au- 
thority    259 

Warrant  reserved  upon  judgment 

creditor 269 

When  a  sheriff  becomes  a  tres- 
passer    257 

— - —  an  attachment  cannot  be  is- 
sued . 


ATTORNEY,  Page  42. 
Acting  in  excess  of  his  powers  as 

attorney 

-^—  under  decision  of  Supreme 

Court 

Action  for  deposit  claimed  by  two 

parties 

in  directing  the  levy  upon 


246 


271 

284 
285 
271 


or  taking  goods 
Agreeing  to  prosecute  claim  for  half 

of  it 274 

Authority  to   collect   interest  does 

not  authorize  the  collection  of 

principal 280 

to  settle  or  adjust  claims, 

etc.     .  275 


Cannot  recover  for  professional 
with  proof  of  statute  qualifica- 
tions   

Converting  goods  on  which  he  has 
a  lien 

False  warning  to  bank  cashier  .    . 

"  Fiduciary  Capacity "  relates  to 
cases  of  technical  trust  .  .  . 

Forbidden  to  purchase  interest  in  a 
thing  in  controversy  adverse  to 
his  client 

Forfeiture  of  a  lien  claim,  when 
once  incurred  

Gratuitous  bailee  delivering  securi- 
ties  

In  fact  cannot  bind  his  principal  as 
security 

Issue  of  bills  of  lading  before  re- 
ceipt of  goods  

Purchase  of  claim  which  is  in  liti- 
gation   

Power  to  possess,   sell,  etc., — real 

estate.  

to  sell  real  property  by  hus- 


273 

296 
292 

305 


287 
290 
295 
276 
294 
282 
279 
283 


band  and  wife 
Profound   secrecy    between    client 

and  attorney 278 


PARAGRAPH. 

Purchasing  of  a  client  his  claim  .        272 
"  Received  from  H.  N.  P.  one  let- 
ter envelope  sealed,  said  to  con- 
tain #290 " 297 

Retainer  does  not  authorize  attor- 
ney to  settle  or  adjust  claim  .        275 
Stipulation  to  pay  certain  fees  .    .        277 
Tax  deed  made  to  attorney  is  void 
if  the  owner  of  the  land  was  at 
the  time  his  client 288" 

BAILEE,  Page  44. 

Actual  delivery  by  bailee  on  de- 
mand of  true  owner 293 

Conversion  of  goods  by  bailee,  on 

which  he  has  bestowed  labor,       29& 

Finder  of  a  bank  note,  as  against  a 

bailee 291 

Forfeiture  of  a   lien   claim,  when 

once  incurred 2901 

Gratuitous    bailee    of   money    for 

lending 295 

Issue  of  bills  of  lading  before  re- 
ceipt of  goods 294 

Neglect  to  place  mortgage  on  rec- 
ord    295 

Receipt  in  following  words,  "  Re- 
ceived from  H.  N.  P.  one  let- 
ter envelope,  sealed,  and  said 
to  contain  $290 

Voluntary  bailee  without  reward  . 
relinquishment   of  posses- 


297 
292 

289 
290- 


sion  by  the  bailee 
Waiving  of  his  claim  by  bailee  .  . 

BANKRUPTCY,  Page  45. 

Absolute  powers  are  given  ....          82 

Accounts  may  be  assigned  ....        219 

Action  against  trustees  of  savings 

bank  for  negligence 298 

Active  or  express  fraud,  as  distin- 
guished from  an  implied  or 
constructive  fraud 305 

After  assignment,  balance  in  bank 

was  withdrawn  from  assets  .  .  197 

Against  national  banks 264 

Assignee  is  merely  representative 

of  the  debtor 231 

Assignee's  action  for  the  conversion 

of  a  chose  of  action  ....  258,  259 

Assignment  of  wages,  under  seal  .        193 

Availing  oneself  of  the  exception 

in  bankrupt 302 

"  Debtor  about  to  dispose  of  prop- 
erty"  261 

Delivery  of  goods  on  demand  of  the 

owner 293 

Discharge  under  insolvent  laws  of 

other  states 301 

Failure  of  creditor  to  present  his 

claim  .  , 300 


494 


INDEX  TO   CASES. 


PARAGRAPH. 

Fiduciary  capacity  " in  the  provis- 
ions of  the  Bankrupt  Act  "  .  300 

Giving  preferences  void  under  cer- 
tain circumstances  ....  194 

•Guilty  of  fraud  when  contract  was 

fair  and  honest 299 

Intention  to  deliver  bond  and  mort- 
gage   217 

May  sue  upon  the  debt  or  upon 

notes  given  therefor 304 

Prevent  a  debt  from  being  dis- 
charged in  bankruptcy  .  .  .  299 

Unliquidated  damages  occasioned 

by  a  tort 298 

When  a  debt  is  barred  by  a  compo- 
sition   302,  303 

BANKS,  Page  46. 

Absence  of  another  claimant      .     .       499 

Accounts  at  the  mother  and  at  the 
branch,  one  of  which  is  over- 
drawn .......  331,  332 

Action  against  a  bank  cannot  be 
maintained  without  a  previous 
demand  by  check  or  otherwise,  •  338 

Acts  beyond  its  powers  does  not 
prevent  the  right  of  action  to 
recover 313 

After  note  falls  due 322 

Against  a  national  bank  in  another 

state 264 

All  acts  not  specially  delegated  are 

illegal 307 

Allowing  a  depositor  knowingly  to 
misappropriate  funds  held  as  a 
trustee 495-497 

Altered  check  relieves  the  payee  of 
the  duty  to  know  the  signa- 
ture    476 

Although  the  genuineness  of  signa- 
ture is  settled  by  drawer,  yet 
it  is  a  forgery 485 

Bank  assignments  and  their  dates,       191 

borrowing  money  to  carry 

on  legitimate  business  .  .  .  308 

discharges  its  duties  as  col- 
lector       123 

Banks  acting  as  bailee  without  re- 
ward   292 

Banker  can  be  discharged  in  bank- 
ruptcy   431 

cannot  be  arrested  ordinar- 
ily  430 

Being  an  artificial  body,  can  only 
act  through  its  directors  and 

agents 452 

Bonds  taken  from  its  officers      .     .       375 
Borrowing  is  an  inherent  power  be- 
longing to  banks 308 

money  for  speculating  ille- 
gal       308 


PARAGRAPH. 
Bound  to  have  regard  to  the  amount 

written  in  letters  on  the  check,  486 
Builder's  lien  changed  ....  265 
Buy  notes  only  for  their  fair  market 

value 315 

By-laws  forbidding  transfer  of  stock 
while  owner  is  indebted  to  the 

bank 327 

By  virtue  of  or  under  a  foreign  law,       196 
Can  charge  commission  for  collec- 
tions or  exchange  for  selling 
drafts 316 

make  a  loan  to  a  director 

conditionally 447 

only  borrow  money  to  ena- 
ble it  to  carry  on  its  legitimate 
business 308 

president  charge  the  bank 

with  a  greater  liability  ?  .  360-364 

ratify  all  irregular  acts  .  .  370 

recall  certified  check,  if  it 

was  done  through  mistake      .        401 

repudiate  a  transfer  of  its 

funds  by  its  correspondent  .    .         357 

repudiate   its  own   bills   if 

stolen  and  put  in  circulation  .        350 

sell  and  convey  real  estate 

legally  acquired 310 

Cannot  avoid  its  certification  even 

where  the  signature  is  forged,  494 

be  held  responsible  for  spe- 
cial deposits  (as  box  of  valua- 
bles)   668 

be    proceeded    against   in 

bankruptcy 669 

buy  notes  at  a  usurious  in- 
terest   315 

carry  on  any  other  than  a 

banking  business 307 

deal  in  real  estate  for  pur- 
poses of  speculating  or  invest- 
ment   310 

refuse  to  check  of  a  party 

who  has  simply  committed  an 
act  of  bankruptcy.   .... 
say  which  it  will  pay  where 


464 


all  the  checks  exceed  the  bal- 
ance on  deposit 459 

Case  of  the  death  of  depositor  .    .        321 

Cashier  is  bound  to  know  signa- 
tures    371 

paying  forged  check  .    .    .        371 

should  carry  on  and  open 

all  the  correspondence  of  the 
bank  640,  641 

Cashier's  statement  that  a  signature 

is  genuine 371,  372 

Certain  rights  become  inherent  to 

them 307 

Certificates  of  stock  are  not  negotia- 
ble like  promissory  notes  .  .  341 


INDEX   TO   CASKS. 


495 


PARAGRAPH. 

Certification  does  not  relieve  de- 
posit from  an  attachment  lien,  252 

Certifying  a  check  creates  a  new 
obligation  on  the  part  of  the 
bank 492,  493 

a  check,  indicates  a  general 

scrutinization  of  a  check     .     .       484 

Certifying  checks  outside  the  bank,      369 

Check  assigns  so  much  of  deposit 
only  after  acceptance  of  the 
bank 422,  423 

. .  certified  and  retained  seven 

years.     In  the   meantime   the 
deposit  was  withdrawn  .     .     .       397 
certified   outstanding  does 


not   relieve   the  deposit   from 
attachment 

certified  while  in  hands  of 

drawer 

—  dishonored  is  taken  by  a 
party 

drawn  on  a  merchant  is  a 

bill  of  exchange 

filled  up  or   altered   after 


252 
252 
395 
384 


479 


signing,  loss  falls  on  drawer 

—  held  an  unreasonable  time,  547-549 

—  held  by  an  innocent  party, 
the  payment  thereof  may  not 

be  stopped 402 

—  holder  has  no  right  of  ac- 
tion against  a  bank  before  cer- 
tification or  acceptance  .    .     424,  425 

—  is  an  order  upon  a  bailee  of 
funds 382 

—  is  dishonored  when  payment 

is  refused  for  any  cause  .     .     .       395 
must  be  drawn  payable  to 


some  one  or  bearer 
not  properly  signed    .    .    . 

—  one  year  old  puts  the  bank 
on  an  inquiry 

—  owner  agrees  to  accept  bal- 
ance on  deposit  and  give  check 
to  bank  therefor 

—  payable  several  days  after 
it  is  drawn 

payable  some  days  after  it 


is  drawn  should  be  presented 
the  clay  payable 

— —  taken  ten  days  after  it  was 
drawn 

Checks  are  not  always  a  contract  . 
are  payable  at  any  time  af- 


3RO 
398 

396 


461 
381 


384 

395 
237 


ter  their  dates,  not  before  .    508,  509 

—  drawn    on    another    local 
bank 129 

must  be  paid  until  deposit 

is    exhausted    although    over 
checks  are  out 456 

—  paid  which  were  drawn  by 


PARAGRAPH. 

directors     who     were     never 
elected 399 

Check  payable,  not  designating 
any  day,  should  be  presented 
and  protested  when  due  .  .  .  384 

payable  on  demand,  not  en- 
titled to  grace '  385 

presented   in   a  suspicious 

manner     or     a     questionable 
shape 390 

Clerk  altered  check  after  it  had 
been  signed 

not  authorized  to  receive  de- 


475 
362 


posits 

Collecting"  bank's  right  to  place  the 

proceeds  of  the  collection   .  408,  409 
Collection  rules  established  by  the 

Supreme  Court  of  the  United 

States 527-534 

sales  in  New  York  and  Ohio,      526 


Collections  intrusted  to  an  unworthy 

attorney 

must  be  made  according  to 


513 


the   laws  and  customs  of  the 
place  at  which  is  payable.  .    .        516 

sent  by  private  messenger,       518 

should  be  paid  to  the  bank 


505 


or  party  from  whom  it  received 
it '. 

Common  law  obliges  banks  to  pay 
checks  only  when  made  pay- 
able "  to  bearer  " 487 

Consignee  holds  property  as  bailee 
for  the  bank  holding  bill  of 
lading 418 

Convenience  of  banks  to  a  business 

community 334 

Corporate  funds  must  be  used  to 
increase  its  assets  legiti- 
mately  450,  451 

Credit  for  a  collection  which  has 

not  been  paid  as  supposed  .  .  414 

Customer  has  accounts  at  mother 

bank,  and  one  of  its  branches,  331 

Death  of  depositor,  having  balance 
in  bank  which  has  a  judgment 
against  him 329 

Debt  created  by  fraud  is  not  barred 

by  a  composition  and  discharge,  303 

Debtor  of  a  bank  has  a  right  to  set 
off  its  bills  against  any  debt 
due  from  him  to  the  bank  .  536-539 

Deposit  made  by  an  insolvent  firm 
as  agents,  claimed  by  the  bank 
to  pay  a  debt 1746 

made  carelessly  misleading 

as  to  owner 358 

,  not  money,  but  a  com- 
modity does  not  convey  owner- 
ship to  depository 1623 

of  corporate  funds  made  to 


496 


INDEX   TO   CASES. 


PARAGRAPH. 

lead  the  bank  to  consider  them 
individual  funds 504 

Depositor  has  a  right  to  examine 
the  books  of  the  bank  as  to  the 
condition  of  his  accounts  .  .  .  427 

— —  has  a  right  to  sue  the  bank 
when  it  pays  his  checks  in 
counterfeits 428 

.  has  the  right  to  revoke  pay- 
ment of  any  check  or  checks 
drawn  by  him  even  after  pre- 
sented    400 

— ^— ^—  member  of  a  firm  having 

an  account  with  the  bank   .    .        325 

.  orders   the    bank  to    pay 

a  certain,  and  not  a  part.  .    .  387-389 

Deposits  made  by  a  party  in  an  of- 
ficial capacity 502-504 

received  outside  the  bank,       368 

Director,  a  member  of  a  firm  is  in- 
terested in  a  loan 448 

having  duty  to  perform  as 


regard    to    his    knowledge   of 

facts 

—  must  not  act  prejudicial  to 

the  bank 

renders  service  by  request 

outside  of  his  duties 

should  not  vote  on  questions 


455 
446 
356 
446 


affecting  him  personally  . 

Directors  allowing  an  officer  to 
manage  the  whole  business, 
the  bank  is  held  responsible,  441,  442 

alone  authorized  to  borrow 

money 309 

cannot  delegate  the  right  to 

make  discounts 314 

duties  as  to  suspects  .    .    .        376 

may  be  held  liable  individu- 
ally for  a  special  deposit.  .  .  588 

of  banks  must  be  more 

diligent  than  those  of  other 
corporations 434,  435 

may  select  a  discount  com- 


mittee  

not  entitled  to  compensa- 


tion. 


not  allowed  to  say  they  had 


445 
355 


no  knowledge  of  the   derelic- 
tions of  its  officers 437 

Discounts  only  made  by  directors,  314 
Does  not  set  itself  up  as  an  expert,  371 
Evidence   of  surrounding    circum- 
stances    229 

Entrusting  power  to  officials  of  a 

bank 436 

Facts  which  may  enhance  sureties 

risk 377 

Failure  to  charge  certified  check  .  397 

False  or  fraudulent  representations,  352 


PARAGRAPH, 

False  statements  intended  to  de- 
ceive plaintiff 354 

Funds  of  depositor  not  enough  to 

pay  check  in  full 386 

Forged  check  of  another  depositor 
of  the  same  bank  is  credited  to 
another  depositor 337 

Garnished  should  not  pay  out  the 
fund  until  discharged  or 
guaranteed 500 

Grace  on  checks  payable  several 

days  after  it  is  drawn  ....  381 

General  custom  now  binds  banks  to 

pay  checks  payable  to  order  .  487 

Handwriting  of  the  body  of  the 
check  may  be  different  from 
the  signature 478 

Has  a  mortgage  on  real  estate  to 
secure  general  balance  due 
from  deceased  depositor  .  .  .  3301 

a  right  to  repudiate  the  act 

of  its  officer  when  the  act  is  an 
illegal  one 344 

a  lien  upon  and  a  right  to 

hold  as  security  all  moneys 

and  funds  in  its  hands .  .  .  317»  318 

no  right  to  make  itself  re- 
sponsible when  it  pays  or  cer- 
tifies a  check  before  it  is  pay- 
able   405 

no  right  to  take  usury  in 

anyway 316> 

Holds  a  note  made  by  a  depositor 

made  payable  by  it 655 

How  long  a  bill  or  check,  payable 
on  demand  or  at  a  given  time 
may  be  kept  in  circulation  .  547-549 

Ignorance  of  the  true  owner  of  a 

collection 412 

Identification  of  holder  of  a  check 
and  genuineness  of  signature 
of  indorser 489-491 

Important  feature  of  the  business 

of  A 511 

Indorser  of  a  check  is  subjected  to 
a  different  rule  from  where  it 
is  sought  to  hold  the  drawer,  541-549" 

Illegal  ownership  of  real  estate  is 

void 311 

Is  agent  only  of  the  depository  of 

paper  for  collection  ....  516 

always  held  to  the  strictest 

diligence 473,  474 

not  bound  to  institute  suit 

upon  any  paper  indorsed  to  it 

for  collection 512 

not  like  a  common  carrier  .       366 

protected  in  the  payment  of 

a  check  signed  in  blank  when 

filled  up -.  477 


INDEX    TO   CASES. 


497 


Is 


responsible     for     false 
merits  of  its  officials  . 


PARAGRAPH. 
state- 

.     .      353 
It  is  not  bound  to  accept  deposits 

from  every  one  offering  them  .       365 
Knowledge  coming  to  a   director, 
while     in     discharge    of  his 
duties. 


obtained  by  a  director  not 


453 


454 


in  his  official  capacity 

Learning  of  the  death  of  the  drawer 

must    refuse   payment   of  the 

check 465,  466 

Liabilities  of  banks  for  the  acts  of 
its    officers    when    performed 
within  the  line  of  duties     .     .       348 
Lien    on   stock   secured   by   State 

statute 328 

on   its    stock   stands   good 

against   a   member   of  a  firm 

that  owes  the  bank  ....  326 
Malfeasance  of  an  officer.  .  .  .  351 
May  compromise  of  a  bad  debt .  .  347 
— — —  devolve,  special  duties  upon 

one  or  more  of  its  officers   .     .       345 

hold  a  cash  dividend  pledged 
to  it  for  a  debt  of  a  stockhold- 
er to  the  bank 1640 

— —  instruct  cashier  or  presi- 
dent to  make  a  certain  discount 
limited  as  to  time,  etc.  .  .  .  444 

•  make  itself  liable  by  select- 
ing  an   improper  notary     .     .      520 

-^— —  open  an  account  with  a 
married  woman  and  pay  her 
checks 415,416 

.  pay  out  deposits  on  verbal 

orders 433 

^—^—  ratify  any  act  done  with  its 

officers  or  agents 363 

recover  money  from  the  ven- 
dor paid  him  for  the  land  .  311 

repudiate  any  loan  made  to 

it,  or  its  directors  for  any  im- 
proper purpose 346 

set-off  to  any  one  of  several 

demands 320 

take   real   estate   for  debts 


overdue 310 

Meaning  of  term  in  the  I  loth  sec- 
tion of  Revenue  Act  of  July 
I3th,  1866 309 

Money  advanced  on  a  collection  to 
the  transmitting  bank  .  .  . 

advanced  on  strength  of  a 

bill  of  lading  attached  to  the 
discounted  paper .  •  .  .  . 

Moneys  borrowed  by  N.  B.  is  not 
considered  capital  on  which 
taxes  are  levied  ....  670,  671 

Mortgage  to  N.  B.  on  real  estate  to 

32 


411 


417 


PARAGRAPH. 

secure  present  or  future  loans 

are  void  .  .  • 667 

Most  Important  business  of  banks 

is  that  of  making  discounts  .  443 

Must  not  undertake  to  distribute 

funds  pro  rata  .  .  •  .  .  457 

use  due  diligence  in  col- 
lections whether  compensat- 
ed or  not  therefore  .  .  .  514,  515 

Name  of  each  officer  usually  desig- 
nates the  peculiar  duties  he  has 
to  perform 359 

Negligence  in  obtaining  informa- 
tion of  bankruptcy,  assignment 
or  death 467-471 

No  lien  on  boxes  or  contents  left 
with  it  for  convenience  of  de- 
positor   323 

Non-payment  of  a  collection  protest 
should  be  made  known  to  the 
owner  of  the  paper  ....  404 

Notary,  acting  under  salary,  is  an 
agent  of  the  bank  employing 
him 520 

Notes  discounted  in  excess  of  the 

law 419 

owned  by  bona  Jide  holder 

losing  them  by  fire  which  he 

can  fully  describe  ....  540 

Offer  to  accept  for  check  the  balance 

due  the  depositor  ....  392 

Order  drawn  by  a  customer  on  his 

bank 383 

Overdraft  by  an  agent,  of  his  prin- 
cipal's account  with  knowledge 
of  cashier 373 

Paper  owned  by  a  bank,  not  made 

payable  thereto 407 

Paying  check  before  its  date  assumes 

all  risks 509 

a  part  of  a  debt  and  indors- 
ing the  amount  thereon  loses 
its  voucher 391 

Payment  of  a  check,  dated  ahead, 
should  be  refused  until  the 
date  thereof 402 

of  raised  check,  as  be- 
tween the  bank  making  the 
payment  and  the  bank  de- 
manding its  payment  .  .  .  479-483 

Pays  a  check  of  deceased  drawer 
before  it  has  received  due  no- 
tice thereof 466 

Permitting  a  cashier  to  make  a 
loan  and  do  not  examine  his 
acts 447 

Powers  are  confined  to  those  ex- 
pressly given  to  them  .  .  .  306 

Power  to  make  loans  granted  to 

two  directors  of  the  bank  .  .  309 


498 


INDEX   TO   CASES. 


PARAGRAPH. 

Power  to  buy  and  sell  real  estate, 
must  be  construed  to  be  the 
right  to  buy,  etc 312 

.  to  execute  paper  delegated 

to  two  persons  one  of  them  has 
no  right  to  execute  paper  .  .  309 

President  of  bank  not  authorized  to 

certify  his  own  check  .  .  .  374 

Prohibited  against  national    banks       262 

Property  of  the  bank  cannot  be 
used  except  on  the  legitimate 
business  of  banking  .  .  .  449 

Protest  of  a  paper  should  be  made 
known  to  all  parties  indorsing 
the  paper 405 

Questionable  whether  bank  should 
pay  check  in  part  or  so  far  as 
balance  may  go 387 

Question  as  to  directors  responsi- 
bility   354 

Receiving  a  collection  advances 
money  thereon  to  the  remitting 
bank 412,413 

.  a  deposit  must  pay  all  le- 

gal demands  thereon  promptly,  386 

Refusal  of  bank  to  pay  a  check, 
having  ample  funds  of  the 
drawer 480-482 

Relation  existing  ordinarily  be- 
tween a  bank  and  its  de- 
positor   335 

Refusal  to  pay  proper  checks  makes 

bank  liable  for  all  damages  .  389 

Responsibility  of  banks  for  special 

deposits  when  stolen  .  .  .  1621 

Retained  check  twenty-four  hours,       394 

Rights  or  powers  of  national  banks, 

662-666 

Right  to  refuse  transfer  of  its  stock 

where  it  has  any  claim  thereon  326 

to  refuse  payment  of  check 

when  the  same  is  ambiguously 
drawn  or  worded  ....  379 

Securities  given  to  secure  a  debt 
and  left  after  the  debt  was 
paid 324 

Should  pay  notes  of  its  depositors 

made  payable  at  the  bank  .  .  334 

Simple  account  being  credited 
therein  with  the  proceeds  of 
notes  discounted,  etc.  .  .  .  339 

State  only  can  complain     ....       313 

Stockholder's  rights  must  be  protect- 
ed by  the  directors  ....  419 

Stranger  leaves  money  with  clerk 
to  pay  his  note  when  pre- 
sented   367 

Sum  to  be  paid  must  be  explicitly 

set  forth  on  check  ....  380 

Time  a  bank  may  hold  a  check  be- 


PARACRAPK 

fore  it  will  be  considered   as 
having  accepted  it 393 

Title  and  ownership  of  stock  certi- 
ficates offered  as  collateral 
should  be  ascertained  .  .  .  340 

Trustees  of  Savings  bank  charged 

with  negligence     .     .     .     •     .      298 

Security  for  payment  of  any  de- 
mands   239 

Unauthorized  paper  only  good  in 
the  hands  of  innocent  holders 
for  value 309 

Usage  of  trade  for  banks  to  take 
pledges  from  factors,  as  se- 
curity   1741 

or  special  contract  changes 

rules 405 

-^— —  will  not  always  prevail,     409,  410 

Usages  often  regulate  the  responsi- 
bilities of  parties  acting  to- 
gether   406 

When  a  bank  is  made  a   debtor    .      336 

an   act   gives   power  to    a 

body    of   men   to   engage    in 
banking 307 

creatures   of  statutory  law,       306 

— —  sureties  are  bound  for  acts 
committed  previous  to  giving 
bond 378 

sureties  of  officers  may  be 

relieved 376 

BILLS  OF  EXCHANGE,  Page  127. 

Acceptance  of  draft  dated  in  one 
state  and  drawn  by  resident  of 
such  state  or  resident  of  an- 
other    965-967 

"  Accepted.  Payable  after  my  ad- 
vances are  paid "  .  .  .  .  905 

at  the   request   of  a    third 

party  who  agrees  to  share  any 

loss     .     .    - 957 

Acceptor  who  tears  bill  in  two  parts 

to  destroy   it 958 

Action  on  draft  drawn  in  N.  Y.  for 
goods  sold  and  delivered  there, 
and  accepted  in  Montreal  .  .  939 

Authority  of  agent  to  receive  pay- 
ment by  accepting  a  bill  drawn 
in  blank :  .  920 

Bank    placed   in  liquidation   after 

delivery  of  draft 927 

Bill  drawn  in  one  state  upon  a  party 

in  another 922 

drawn  for  the  accommoda-' 

tion   of  another 909 

Bills,  drawn  and  accepted  by  same 

parties 907 

drawn  by  officers  of  govern- 
ment   923 


INDEX   TO   CASES. 


499 


PARAGRAPH. 

Bill  made  payable  to  and  indorsed 

by  A.  B.  "  Agent "  .  .  .  .  913 

Damages  on  bill  expressing  value 
received  and  drawn  without  the 
state  .  .' 940 

Defence,  want  of  consideration    918,  919 

Destroyed  by  the  one  who  was  ex- 
pected and  asked  to  accept  it,  960 

Draft  drawn  for  price  of  goods  sold 
and  delivered  is  equivalent  to 
demand  of  payment  .  .  .  964 

Drawer  of  a  check  undertakes  that 
the  drawee  will  be  found  at  a 
certain  place 924-927 

Drawn  and  indorsed  in  England 

payable  abroad 955 

by  agents  upon  the   com- 
pany they  represent,  on  their 

own  bill  heads 944 

•  by  party  in   Chicago  upon 
firm  in  St.  Louis,  verbably  ac- 
cepted by  member  of  firm  .    .        943 

i  for  sole  accommodation  of 
payees  and  accepted  by 
drawee 945 

— —  in  favor  of  payee  on  a  cer- 
tain fund 953 

•  to  enable  acceptor  to  raise 
money   to  pay   his  debt    due 
drawer 954 

Evidence  that  the  holder  of  a  bill 

had  notice 917 

Extension  of  time  given  on  bill   .   .        957 

Failure  to  stamp  foreign  bill  and  a 

delay  of  a  year 947 

General  indorsement  of  bills  evi- 
dence of  property  in  indorsee,  904 

Habit  of  paying  drafts  does  not 
compel  him  to  pay  similar 
ones 951 

Indorser  of  a  note,  even  though  it 

be  an  accommodation  note  .  968 

of  bill  entitled  to  notice  .  .         942 

who  had  been  condemned 

with  the  maker 910 

Insisting  upon  legal  rights    .    .    .        912 

Intention  to  assign  a  fund  in  the 

hands  of  another 906 

Looking  up  a  bill  of  exchange  two 

years 938 

Mere  retention,  without  demand 
for  a  return,  dissent  to  reten- 
tion of  a  bill 961-963 

Must  be  payable  at  all  events    .    .        948 

Name  of  acceptor  written  across  the 

stamp 9J6 

National  bond  taxed  at  an  amount 

above  their  par  value  ....  969 

Notification  of  the  purpose  for 
which  new  draft  was  au- 
thorized    931 


PARAGRAPH. 

Payee  of  a  bill  of  exchange  failed 
an  hour  before  payment  was 
made 903 

Paying  bill  before  maturity  cannot 
change  relations  of  original 
parties 949 

Payment  by  buyer's  acceptance  of 

seller's  draft 921 

Pay  plaintiff  on  account  "  as  per 

contract " 959 

Party  authorized  by  another  to 

draw  different  drafts  on  him  .  937 

Possession  of  a  draft  presumptive 

evidence  of  ownership  .  .  .  950 

Prior  equities  of  antecedent  parties 

to  paper 936 

Promise  to  accept  a  future  bill,  in 
consideration  of  money  ad- 
vanced thereon  by  payee  .  .  956 

Right  to  "  reexchange  in  absence 

of  express  agreement "...  908 

Vessel  chartered  for  a  sum  named,       911 

Warranty  on  part  of  vendor,  a  bill, 
valid  in  the  hands  of  an  in- 
dorsee    933-935 

When  bill  is  either  bill  or  a  note  .        941 

When  drawers  and  acceptor,  as  be- 
tween themselves 946 

When  no  value  or  consideration 

for  acceptance  exists  ...  952 

Words  "  I  take  notice  of  the 

above  " 914 

BILLS  OF  LADING,  Page  137. 
Action  for  the  conversion  of  goods,       982 
Advances  made  on  bill  of  lading  be- 
fore goods  are  on  board  .    .    .        975 
Are    not    negotiable   in   the   same 

sense    in    which   bills    of   ex-         , 
change  or  notes  are     ....        975 
-transferable  by  indorsement,      977 


Bill  delivered  to  shipper  of  goods,       978 

Bills  always  attending  the  draft .  .        981 

of  lading  having  printed  rules 

thereon 971 

of  lading  in  which  there  is  a 

clause  acknowledging  the  re- 
ceipt of  property 970 

of  lading  bind  carriers  to  for- 
ward goods  with  despatch  .  .  971 

Carriers  must  forward  goods  to 

destination 971 

Clause  in  bill  of  lading  acknowl- 
edging receipt  of  property  .  .  970 

Commission  is  earned  when  prin- 
cipal accepts  the  person  pre- 
sented to  him 1040 

Delivered  to  the  shipper  of  the 
goods  is  the  bill  that  makes 
the  contract 978,  979 

Discounted   and   delivered   to    the 


500 


INDEX   TO   CASES. 


PARAGRAPH. 

party  discounting  the  bill  con- 
veys to  him  property  also  .    .         980 

Does    not    always   invest    title   to 

goods 982 

Draft  discounted  by  consignor  upon 

his  consignee 979,  980 

Evidence  in  support  of  ownership 

of 973 

Forged  bills  of  lading  attached  to 

drafts 981 

. discounted  by  a  bank  and 

paid   by   the    consignee,    who 

was  ignorant  of  the  forgery    .         981 

For    goods    not    actually    put    on 

board 975 

.  goods  sent  to  a  purchaser, 

and  not  objected  to  by  him     .        974 

Indorsee  of  a  bill  of  lading  may 
libel  a  vessel  for  non-delivery 
of  goods 984 

— —  of  a  bill  of  lading  may  libel 

a  vessel 984-986 

In   effect   vest    the    ownership   of 


goods  consigned  to  consignee, 

May  be  explained  by  parol  evi- 
dence in  so  far  as  it  is  a  re- 
ceipt   

Principal  is  not  bound  to  accept 
the  person  presented  to  him  as 
buyer  

Railways  are  not  liable  for  ad- 
vances made  by  commission 
merchant  on  fraudulent  bills  of 
lading 

When  transferred  does  not  always 
vest  authority  to  sell  goods  de- 
scribed   

Where  one  of  two  innocent  parties 
suffer  from  wrongful  acts  of 

third  party 

parol  evidence  is  admissible 


983 


987 


1040 


975 


982 


976 
973 


to  prove  an  acceptance 
Which  is  silent  as  to  the  place  of 

storage 985,  986 

BILLS  OF  SALE,  Page  140. 

Absolute  bill  of  sale,  executed  to 

secure  a  debt 988 

Executed  to  secure  a  debt,  will  be 
postponed  to  a  subsequent  re- 
corded mortgage 988 

Intended  to  secure  a  debt  operates 

as  a  mortgage 988 

Recorded  mortgage  supersedes  a 
bill  of  sale,  given  to  secure  a 
debt 988 

Sale  of  personal  property,  pos- 
session of  which  was  delivered 
next  day 989 

Vendor  continued  in  possession  un- 
til goods  were  attached  .  .  .  989 


PARAGRAPH, 
When  bills  of  sale  are  conclusive 

evidence  of  fraud 989* 

With  an  immediate  delivery  of  pos- 
session with  continued  change 

of  possession 989* 

BONA  FIDE  HOLDER,  Page  140. 
Antecedent  debt  effects  do  not  ap- 
ply  to  instruments  conveying 
real  estate 1003- 

debt    is   not   such  a   con- 


sideration as  will  cut  off  equity 

of  third  parties 1001 

Assignee  of  mortgage  purchased  in 

good  faith  for  value  .  .  .  998,  999* 

Bonn  fide  holder  for  value  of  ne- 
gotiable paper  held  as  security,  1003- 

holders  of  bonds  cannot  be 

allowed 991 

Contract  to  sell  for  cash  on  de- 
livery  990* 

Indorsee  of  a  note  taking  it  as  col- 
lateral security  for  an  "ante- 
cedent debt 995- 

Issue  of  bonds  must  be  made  by 

virtue  of  special  authority  .  .  991 

Judgment  purchased  for  less  than 

its  face 997 

Mortgagor  estopped  from  pleading 

usury 988- 

No  bona  fide  holder  of  bonds,  with- 
in the  meaning  of  law  as  to 
notes 991 

Possession  of  money  vests  the  title 

in  the  holder 10001 

"Purchase  of  a  judgment  for  less 

than  its  face 997 

Precedent  of  payment  was  not 
waived  by  the  symbolical  de- 
livery   9901 

Purchasers  of  town  bonds  must  see 

to  it  that  their  issue  is  legal  .  992 

Real  estate  conveyances  as  security 
are  subject  to  equities  between 
prior  parties 1003 

Regular  on  its  face  signed  on  con- 
dition that  others  sign  it,  but 
do  not 1037" 

Satisfaction-piece  of  a  mortgage  is 
a  conveyance  under  the  Re- 
cording Act 996 

Sells  a  quantity  of  corn  to  be  paid 

for  on  delivery 990 

When  no  title  to  property  passes  .        990" 

Where  the  right  of  stoppage  in 

transitu  is  defeated  ....  994 

BONDS,  Page  142. 
Acceptance   of    an   instrument,   in 
form  of  a  bond,  containing  no 
seal    .  1019* 


INDEX   TO   CASES. 


501 


PARAGRAPH. 

Accepted  for  the  future  good  con- 
duct of  an  agent  already  in  his 
employ 1024 

Alteration  of  the  number  of  a 
stolen  bond  does  not  impair  the 
rights  of  the  true  owner  .  .  .  1021 

Being  executed,  complete  and  per- 
fect though  not  signed  by  all 
the  sureties 1038 

Bond  for  the  future  good  conduct 
of  an  agent,  already  in  his  em- 
ploy    ....  1024 

— — —  of  indemnity  given  to  an 

accommodation  indorser .  .  .  1025 

-^— —  required  of  a  collector  of 

taxes 1019 

——  stolen  and  number  altered, 

in  hands  of  bonafide  holder  .  1009 

Bonds  with  coupons,  payable  to 

bearer 1028 

City  bond  stolen  and  number 

changed  by  the  thief  ....  1004 

Dealer  in  municipal  bonds,  which 
refers  to  the  statute,  must  take 
notice  of  all  its  requirements  .  1010 

Debt  secured  by  three  securities,  the 
principal  being  held  for  whole 
sum 1005 

Depositor  entitled  to  the  set-off  of 
the  amount  of  his  deposit  in  an 
insolvent  bank 1011 

Designation  of  a  bank  as  the  place 

of  payment  of  a  bond  .  .  1030, 1031 

Exchange  of  State  bonds  with  cer- 
tain railway  companies  under 
legislative  action 1012 

Executed  by  an  attorney  in  fact 
signing  the  obligor's  right  sur- 
name and  wrong  baptismal 
name 1029 

Fraudulent  change  of  owner's  name 

in  stolen  U.  S.  bonds  .  .  .  1014 

-^-^—  suppression,  by  the  person 

who  solicited  surety  to  sign  .  .  1035 

•Generally  the  term  "  bond  "  implies 

an  instrument  under  seal  .  .  1019 

•Given  to  another  to  secure  the  faith- 
ful performance  of  a  third  per- 
son's contract 1015 

-Guarantee  expressly  referring  to  a 

previous  agreement 1016 

Guaranty  for  the  faithful  perform- 
ance of  certain  duties — de- 
faulted    1018 

•  signed  by  guarantor  and  de- 
livered to  agent 1017 

was  signed  and  delivered  to 

the  agent  of  the  guarantee  .  .  1017 

Jn  which  each  surety  is  severally 
bound  for  only  a  specified  part 
of  obligation 1039 


PARAGRAPH. 

Irregularity,  or  fraud,  or  miscon- 
duct on  part  of  agents  of  mu- 
nicipal corporation  ....  3008 

Liability  of  surety  cannot  be  ex- 
tended by  implication  beyond 
terms  of  contract 1006 

Married  woman  cannot  bind  her- 
self as  security  on  an  official 
bond  . 1020 

Money  bond,  issued  by  a  body  poli- 
tic, under  authority  of  law  .  .  1021 

Municipal  bond  in  the  ordinary 
form  is  a  promissory  note  ne- 
gotiable   1038 

bonds  issued  without  au- 
thority, although  negotiable  in 

form,  are  void 1027 

corporation    cannot 


1007 
1005 


1025 
1004 


1022 


1006 


bonds  without  legislative  au- 
thority   

Obligation  that  is  several .... 

Of  indemnity  given  to  an  accommo- 
dation indorsor  conditioned 
upon  payment  of  certain  notes, 

Negotiable  city  bond  stolen,  and 
number  changed  by  thief  .  . 

Payable  to  bearer,  has  the  negoti- 
able quality  of  ordinary  com- 
mercial paper 1021 

Power  to  issue  county  bonds  carries 
with  it  a  power  to  make  them 
payable  out  of  State  .... 

President  responsibility  that  does 
not  relieve  his  subordinates 
from  responsibility  .... 

Proof  that  the  bond  was  delivered 
upon  the  consideration  that 
others  sign  it 1036 

Purchaser  of  coupons  which  refer 
to  the  bonds  to  which  they  are 
attached 1010 

Reasonable  notice  to  the  guarantor 
of  any  defalcation  on  the  part 
of  the  contractor 1015 

Representations  made  at  the  time  of 
execution  of  a  bond  effect  on 
a  bond 1034 

Seal  affixed  to  the  signature  of  the 

maker  of  the  paper  ....  1023 

Stolen  reaches  in  the  hands  of  an 
innocent  holder  for  value  be- 
fore maturity 1004 

Sufficient  notice  of  the  precarious 

condition  of  the  bank  .  .  .  1035 

Sureties  upon  an  official  bond  are 
not  liable  for  defalcation  of 
previous  term 1032 

Total  want  of  authority  to  issue 
municipal  bonds  prevents  bona 
/^holding 1009 

Treated   as   an  asset  of  the  bank 


502 


INDEX  TO   CASES. 


PARAGRAPH. 

three   years  before   its  insolv- 
ency    1035 

There  can  be  no  innocent  holder  of 
paper  issued  by  municipal  cor- 
poration without  power  .  .  .  1026 

Under  seal,  though  voluntary,  cre- 
ates a  debt,  impeachable  only 
for  fraud 1013 

When  a  bond  for  good  conduct  of 
an  agent  requires  his  miscon- 
duct made  known  ....  1024 

.  a  guaranty  purports  upon  its 

face  a  sufficient  consideration,     1016 

..  Legislature  has  no  authority 
to  create  certain  business  rela- 
tions   1012 

securities  are  liable  for  money 

due    on   account   of    previous 

term 1033 

Where  secretary  is  not  relieved  from 
his  responsibility  as  receiver  of 
money 1006 

With  coupons,  payable  to  bearer, 
are  negotiable  and  pass  by  de- 
livery   1028 

Words  "  witness  our  hands  and 
seals,"  where  no  seal  is  at- 
tached   1019 

BROKERS,  Page  147. 
Commissions  due  qn  acceptance  of 

contract 1040 

Employer  is  not   bound   to  accept 

purchasers  presented  .  .  .  1040 
Is  bound  to  act  in  good  faith  .  .  1040 
Undertakes  to  furnish  a  purchaser,  1040 

BURDEN  OF  PROOF,  Page  147. 

Innocent  purchaser  of  property  .     .  1041 

Proof  of  purchaser  participating  in 

the  fraud 1041 

Property  transferred  to  hinder,  de- 
lay and  defraud  creditors  .  .  1041 

Title  of  property  is  assailed  as  void,  1041 

CERTIFICATES,  Page  148. 

Adjournment  of  difference  in  regard 
to  securities  held  by  a  deposit 
and  credit  bank  .....  1049 

Allowing  interest  until  maturity     .     1044 

Clear  and  satisfactory  evidence  only 
can  overcome  a  certificate  of 
deposit 1043 

Evidence  of  high  and  satisfactory 

character 1043 

Omission  of  requisite  acts  required 
by  statute  to  perfect  a  corpora- 
tion   1045 

Of  deposit,  payable  at  their  return 

to  the  bank,  properly  indorsed,  1046 

Of  deposit,  payable  on  demand  with- 


PARAGRAPH, 

out    interest,   and   a   certified 
check  are  the  same  thing   .     .     104T 

Rate  of  interest  stated  in  certificate 
of  deposit  continues  until  it  is 
paid 1044 

Religious  corporation  where  the  cer- 
tificate was  defective ....  1045- 

Set-off,  either  legal  or  equitable,  at 

the  time  of  a  transfer  of  a  note,     1049* 

State  having  required  certain  acts 
to  be  done  to  constitute  a  cor- 
poration   1045 

Statute  of  limitations  begin  to  run  .     1048- 

When  a  certificate  of  deposit  be- 
comes a  note  ....  1042,  1047 

statute  of  limitations  begin 

to  run  against  certificates  of  de- 
posit payable  on  demand,  1046,  1043- 

CHARGES  ON  BOOK,  Page  149. 

Agent  and  corporation  receiving 
goods  and  gave  seller  credit  for 
them 1050* 

Goods  sold,  charged  to  A., on  credit 

of  a  corporation 105X> 

CHATTEL  MORTGAGES,  Page  149. 

After  acquired  property  attaching  it- 
self to,  etc 1085- 

An  immaterial  variation  between  a 
chattel  mortgage  and  the  copy 
subsequently  filed  ....  1086- 

Appropriations  of  payments  by 

either  debtor  or  creditor  .  .  1071 

As  between  the  parties,  is  valid, 

without  any  acknowledgment,  1073- 

Authority  to  sell  the  stock  mort- 
gaged given  to  the  mortgagor,  1088 

Chattel  mortgage  permitting  mort- 
gagor to  remain  in  possession, 
and  to  sell,  etc 1052 

Continued  possession  of  chattels  by 

the  mortgagor 1081 

Codefendants,  not  related  to  the 
cause  of  action  set  up  in  com- 
plaint  1075- 

Contained  the  words  "  to  hold  as 
collateral  for  1,000  P.  T.  oil 
pipage  paid,"  etc 1092" 

Constructive  possession  will  not 

avail 1078- 

Debtor  receiving  chattels  in  pay- 
ment of  his  debt  secured  by 
mortgage  thereon 1052- 

Defect  of  a  description  of  goods  held 

under  a 1080 

Does  not  protect  from  execution 
material  purchased  by  the  exe- 
cution debtor  before  it  was 
given 107£ 


INDEX   TO   CASES. 


503 


PARAGRAPH. 


Effect  of  a  public  sale,  upon  due 
notice  under  achattel  mortgage, 

Empowers  the  seizer  and  sale  of  the 
prope/ty  under  ordinary  pro- 
cess of  law 

Expressed  to  be  "  subject  to  prior 
mortgages  "  and  recorded  be- 
fore the  others 

Failing  to  describe  the  property  is 
cured  by  a  subsequent  delivery 
of  property  to  mortgagee  .  . 

Falsely  describing  property  in  a 
mortgage  will  not  affect  third 
party  buying  it 

Given  as  continuing  security  to 
cover  present  and  future  in- 
debtedness   

.  to  secure  several  notes  held 

by  different  parties  .... 
with  a  tacit  or  expressed 


understanding  that  mortgagee 
may  sell  the  property  .  .  . 

Goods  in  possession  of  mortgagee 
is  exempt  from  seizer  under 
writ  of  attachment  in  insolv- 
ency   

Husband  and  wife  gave  a  note  and 
secured  by  a  mortgage  on  her 
furniture 

Insufficient  description  of  chattels 
mortgaged 

In  which  the  affidavit  required  by 
general  statutes  is  omitted  .  . 

Is  in  law  a  conveyance  of  the  goods 
and  chattels  mortgaged  .  .  . 

Made  to  secure  debts  maturing  at  a 
future  day,  conveying  a  stock 
of  goods 

May  be  fraudulent  as  against  credi- 
tors although  founded  on  a 
valuable  consideration  .  .  . 

Mistake  in  the  number  of  the  lot 
where  chattels  were,  is  imma- 
terial usually 

Mortgagee  agreed  to  sign  his  inter- 
est for  the  notes  of  a  third  party, 
etc 

— i of  chattels  upon  public  sale 

makes  reasonable  and  fa  i  r 
efforts  to  sell 

temporarily  uses  chattels 

with  assent  of  mortgagor  .  . 
-,  under  a  chattel  mortgage, 


may  himself  become  a  pur- 
chaser   

Must  so  describe  the  property  as  to 
enable  third  persons  to  identify 
the  property 

Object  of  a  sale,  upon  due  notice 
under  mortgage 

Of  a  certain  described  horse,  and 


1075 
1033 
1056 
1078 
1063 

1053 
1062 

1064 

1084 

1082 
1080 
1061 
1083 

1055 
1054 
1086 
1087 

1075 
1070 

1075 

1063 
1075 


PARAGRAPH, 

all  other  live  stock  mortgagor 
may  afterwards  acquire .     .     .     1089 

Of  personal  property  to  be  subse- 
quently acquired  .  .  .  1059,  1060> 

One  not  having  a  judgment  and 
execution  is  not  a  creditor 
within  the  meaning  of  the 
statutes 1067,  1068T 

Owner  of  chattel  mortgage  taking 
possession  of  chattels  before 
other  creditor  obtained  judg- 
ment    .  1085 

Possession  by  the  mortgagee,  taken 
before  judgment  of  other  credi- 
tors has  been  obtained  .  .  .  1085 

Preexisting  debts  is  a  valuable  con- 
sideration for  a  chattel  mort- 
gage   1066 

Sale  of  mortgaged  property  without 
notice   to  buyer,  but  with  the 
verbal  consent  of  mortgagees  .     1074 
under  foreclosure  is  expressly 


consented  by  giving  the  mort- 
gage    1051 

Term  "  forced  sale  as  used  in  the 
constitution  is  a  sale  against  the 
will  of  the  owner "  „  .  .  .  1051 

Upon  after  acquired  goods  will  hold 
against  a  bona  fide  purchaser 
with  notice 107T 

Validity  does  not  depend  upon  its 

being  in  writing 1057 

Warehouse    receipts    delivered   as 

security 1069,  107O 

When  a  mortgagee  cannot  maintain 
an  action  of  claim  from  a  third 
person 1065? 

a  transaction  is  not  usurious,     1076> 

Where,  as  against  creditors,  a 
vendor's  sale  of  furniture 

becomes  void 1079) 

a  junior,  as  to  point  of  time, 


is  not  displaced  by  senior  mort- 
gages  

CHECKS,  Page  155. 

Credit  by  a  drawer  of  a  check  to  the 
bank  which  has  not  been  pre- 
sented   

Action  against  a  partnership  on  a 
dishonored  check 

against  drawer  of  a  check  is 

presumption  of  its  validity  .  . 
against  a  fund  in  a  bank 


does  not  assign  that  fund  until 

presentation  of  payment     .     . 

Alteration  of  a  check  invalidates  it, 

An  equitable  assignment  of  a  fund 

by  check 

Are  not  entitled  to  days  of  grace    . 


1085 


1103 
1131 
1155 


1096 
1124 

1096 
1149> 


504 


INDEX  TO   CASES. 


PARAGRAPH. 

Are  not  money  to  be  accepted  by  a 

,         board  of  commissioners .     .     .     1110 

Bank  cannot  retain  money  against 
the  checkholder  for  a  debt  not 
yet  matured 1134 

By  certifying  a  check,  bank  under- 
takes only  that  the  signature  is 
genuine,  etc 1145 

Bank  certifying  a  check  is  primarily 

liable  for  its  payment ....      1144 

directs  checks  drawn  upon 

it  to  be  presented  for  payment 

to  another  bank 1111 

.  is  bound,  before  payment, 

to  ascertain  the  genuineness  of 
the  indorsement  .....      1127 

-^— —  is  liable  on  a  check  certified 
by  it  whether  the  drawer  had 
funds  to  meet  it 1146 

— —  is  not  liable  to  pay  check 
drawn  thereon,  by  a  depositor, 
except  by  its  acceptance  in 
writing 1165 

.  officer's  verbal  response  that 
the  check  is  "  good  "  or  "  all 
right" .  .  .  1125 

-^-^—  or  agent  for  collection  of  a 
certified  check,  should  not  send 
it  to  certifying  bank  for  pay- 
ment   

Being  a  bill  of  exchange  its  ac- 
ceptance must  be  in  writing  to 
bind  the  acceptor 1139 

Bill  is  payment  only  if  it  be  so 
agreed,  which  must  be  evi- 
denced by  writing 1115 

Cashier  certified  a  conditional  check 
as  follows :  "  Good  when  prop- 
erly indorsed" 1092 

Date  of  a  check  is  prima  facie  evi- 
dence of  the  time  it  was  made,  1118 

Death  of  drawer  of  check  re- 
scinds authority  of  bank  to 
pay .  .  .  1150,1151 

Delivered  on  the  day  it  was  offered 

to  another 1119 

to   payee   as  a  gift,  which 

was  neither  paid  nor  accepted, 
the  gift  was  incomplete  .    .    . 

Demand  for  the  payment  of  a  check, 

Depositor  owes  no  duty  to  a  bank 
requiring  him  to  examine  his 
bank  book  or  checks  .... 

Difference  between  checks  and  bills 

of  exchange 1148 

Diligence   to  be   used  in  demand 

payment  of 

in   presenting  for  payment 


1144 


1093 
1116 


1128 


1108 


checks  is  subject  to  the  rules 
governing  bills  of  exchange  . 
Dishonored    any    defence    thereto 


1108 


PARAGRAPH. 

against  the  payee  will  be  avail- 
able against  transferee ....      1143 

Dishonored,  need  not  be  protested  to 

bind  the  maker    .......      1129 

where  presentment  for  pay- 
ment has  been  delayed  does  not 
discharge  the  drawer  ....  1143 

Drawer  of  a  check,  having  no 
funds  at  the  time  in  the  bank, 
the  check  is  due  immedi- 
ately   1222,  1223 

of  a  check  made  payable  to 

order  of  payee,  is  not  respon- 
sible for  forged  indorsement  .      1127 

Drawn   in   the   ordinary  form  not 

describing  any  particular  fund,     1113 

on  a  bank  was  stolen  and 

came  into  the  hands  of  a  bona 

fide  holder 1164 

upon    a   bank   which   has 

been    enjoined    from   making 

any  payments   .    .  * 1112 

upon  defendant's  bank  and 


paid  by  it  before  it  was  noti- 
fied not  to  pay  it 1153 

Endorsed  by  holder,  unauthorized 
by  the  payee  mentioned  in  the 
check 1105 

Excuse  for  delaying  demand  for  its 

payment 1116 

Garnishee  order  was  made  attach- 
ing a  debt  due  from  a  bank  to 
judgment  debtor 1090 

Genuineness  of  a  check  is  not  de- 
clared by  a  bank  officer  saying 
it  is  "  all  right  "  .  .  .  .  1125 

Given  by  a  debtor  to  a  creditor  is 
generally  presumed  to  be  a  con- 
ditional payment 1137 

Given  by  a  debtor  with  the  inten- 
tion of  appropriating  it  to 
the  debt  of  the  plaintiffs .  .  .  1094 

in  payment  of  a  debt,  is 

•  dishonored,  action  need  not  be 
brought  for  such  debt  ....      1135 

in  payment  of  preexisting 

debt  which  has  been  fraudu- 
lently passed 1114 

in  settlement  of  a  balance 

due  which  was  dishonored  .   .      1159 

to  carry  out  an  agreement 

made  in  contravention  of  the 

laws 1109 

to  creditor  to  pay  his  claim 


is  lost  or  stolen,  and  paid  on  a 
forged  indorsement  .   .        .    .      1141 
Has  no  inception  until  delivery  .  .      1119 
Held  by  assignee  of  H.,  who  died 

prior  to  an  action  on  the  check,     1158 
for  six  years,  without  demand 


INDEX   TO   CASES. 


505 


PARAGRAPH. 

of  payment   is   barred  by  the 
statute 1223 

Holder  of  a  check  drawn  in  his 
favor,  acquires  no  right  of  ac- 
tion in  equity,  as  upon  an  equi- 
table assignment 1136 

Is  a  payment  until  presented  and 

refused 1115 

delivered  by  the  drawer  to 

the  payee  long  after  its  date, 
1119,  1120 

not  an  equitable  assignment 

of    a  drawer's  balance  at  his 
banker's 1161 

only  pritna  facie  evidence 

of  money  lent,  paid  and  ad- 
vanced     1133 

sent  to  the  bank  on  which 


it  is  drawn  by  party  to  whom 

it  is  given  for  information  .  .  1126 

Loss,  caused  by  delay  of  presenta- 
tion for  payment,  is  matter  of 
defence 1143 

Made  payable  to  the  order  of  a  par- 
ticular person  must  be  duly  in- 
dorsed for  payment  ....  1098 

Maker  of  a  check  cannot  object  to 

any  delay  in  presenting  it  .  .  1097 

May  be  offered  in  evidence  under 

the  money  counts 1133 

Mere  delay  in  giving  notice  to 
maker  of  the  dishonor  of  his 
check 1132 

Money  paid  on  a  "raised"  check 

by  mistake 1123 

On  a  banker  is  a  'negotiable  instru- 
ment and  indorser  is  liable  to 
holder 1130 

another  bank  is  credited 

in  the  pass  book  of  the  depositor 
comes  back  unpaid  ....  1095 

Order  or  draft  to  have  the  effect  of 

an  equitable  assignment  .  1121,1122 

Or.  note  given,  without  coercion 
of  force,  to  compound  a  crime, 
held  by  a  bona  fide  holder  .  .  1138 

other  negotiable  security  is 

given  on  account  of  a  preexist- 
ing debt  1163 

Paid  by  a  bank  having  a  forged 

signature 1099 

Partner  consents  that  firm's  check 
be  applied  on  an  individual 
debt  of  his  partner  ....  1091 

Party  taking  a  check  is  put  upon 
inquiry  and  subject  to  any 
defence 1118 

Payable  to  order  may  be  transferred 
by  the  payee  by  parol,  with 
delivery  without  indorsement,  1142 

Payee  of  a  check  before  it  is  ac- 


PARAOBAPH. 

cepted  by  the  drawee  cannot 
maintain  an  action  on  the 
latter  ..:....  1102-1104 

Payee  of  check  cannot  maintain 
action  against  drawer  without 
acceptance 1147 

Payment  of  a  check  drawn  against 
a  garnished  claim  being 
stopped 1090 

Person  trusted  with  a  check  by 
payee,  to  pay  into  bank,  ab- 
sconds   1124 

Protest  of  a  check  is  not  required 
to  make  the  drawer  liable  to 
payee 1117 

of   a   dishonored  check  is 

not  a  written  instrument  on 
which  to  base  an  action . .  1106, 1107 

Receipt  for  check  given  as  a  pay- 
ment contains  material  ele- 
ments of  a  contract  ....  1157 

Rights  of  check  holder,  after  death 

of  drawer 1151 

of  check  holder  and  of  the 

bank  are  fixed  when  check  is 
presented  for  payment  .  .  .  1134 

Seller  of  a  note,  for  valuable  con- 
sideration, acting  for  himself, 
promises  orally  the  note  is  good 
and  will  be  paid 1156 

Signed  by  defendant,  under  fraud- 
ulent circumstances  ....  1162 

Transferred  by  parol  with  manual 

delivery  without  indorsement,     1152 

Verbal  agreement  between  the 
payee  and  the  drawer  of  a 
check 1116 

promise  by  a  bank  to  pay  a 

check  does  not  create  a  cause 

of  action 1140 

When  delay  to  demand  payment  on 

a  check  discredits  it  ....     1118 

action      is     maintainable 

against  bank  by  drawer  of 
check  that  has  been  lost  or 
indorsement  forged  ....  1154 

Where  upon  the  face  of  a  check  it  is 

apparent  that  it  was  not  drawn  , 

in  usual  course  of  business     .     1100 

COLLATERAL,  Page  165. 

Creditor  who  holds  railway  bonds 
as  collateral  security  for  a  debt 
refuses  to  deliver  them  .  .  .  1166 

Suing  and  recovering  execution, 
does  not  impair  the  right  to  re- 
tain collateral  ......  1166 

COLLECTIONS,  Page  166. 
Attorney    employed    to    collect    a 

debt 1169,  1170 


506 


INDEX   TO   CASES. 


PARAGRAPH. 

Draft  indorsed  over  for  collection     .     1167 

Checks  must  be  presented  for  pay- 
ment or  certification  promptly, 
1178-1181 

Check  received  in  payment  of  a 

claim  presented  by  collector  .  1178 

Collector  marked  note  as  paid  and 
sent  draft  for  the  proceeds  to 
owner  of  note 1182 

Misstatement  as  to  the  acceptance  of 

a  draft 1171 

Money  only  should  be  received  by 
an  attorney  in  payment  of  a 
claim 1169 

Payment  of  a  draft  stopped  and  its 

return  requested 1182 

Protest  of  a  note  after  it  had  been 

marked  "  paid  " 1182 

Receipt  containing  "avails  are  to  be 
promptly  paid  over  on  receipt 
by  us  " 1168 

Signing  a  note  at  the  request  of 

third  party 1177 

Subagents  liability  for  money  col- 
lected   1168 

When  an  attorney  becomes  an  at- 
torney for  both  creditor  and 
debtor 1170 

COMITY,  Page  168. 
Interpretation  of  commerical  con- 
tracts   1183 

Law  merchant  of  the  United  States,     1183 
Supreme  Court  of  the  United  States 
construction  of  the  law  mer- 
chant   1183 

COMMON  CARRIERS,  Page  169. 
Agreement  to  deliver  goods  beyond 

the  terminus  of  carrier's  road     .     1184 
Carrier  who  expressly  contracts  to 

deliver  goods 1184 

Consignee  refusing  to  take  goods    .     1187 
Discharge  of  goods  upon  the  wharf 

with  notice  thereof   ....     1188 
Duty  by  water  is  not  fulfilled  by 

simple  transportation  from  port 

to  port 1185 

Goods  must  be  delivered,  or  at  least 

landed 1185 

Insurers  accepting  damaged  goods 

at  intermediate  port  ....     1190 
take  possession  of  damaged 

goods 1189 

Liability   of  carrier   for   injury   to 

goods 1187-1189 

Notice  by  carrier  of  arrival  of  goods,     1186 
Reasonable   opportunity  given   for 

inspection •     .     1185 

Relying    on    circumstances,    they 

must  be  proven 1186 


PARAGRAPH. 

What  constitutes  a  delivery  of 

goods.  - 1168 

Where  a  carrier  cannot  be  held 
bound  to  deliver  goods  at  end 
of  voyage  in  order  .  .  .  .  1189 

COMMUNITY  OF  PROPERTY, 

Page  169. 

After  dissolution  of  the  community,     1192 
Husband  only  selling  his  undivided 

interest  in  property  ....  1192 
In  name  of  wife  and  husband  .  .  1 1 91 
Property  purchase  during  marriage, 

whether  in  name  of  husband 

or  wife 1191 

When   husband  has   no  power  to 

sell 1192 

COMPOSITION,  Page  169. 
Acceptance  of  a  smaller  sum  than 

the  amount  due 1195 

Action  on  an  original  debt  after  it 

had  been  compromised  .     .     .     1196 
Agreement  of  compromise  requir- 
ing all  creditors  to  sign  it  .     .     1216 
repudiated  at  the  injury  of 


third  person 1197 

Check  drawn  where  no  funds  are 

to  meet  it 1222 

Claim  for  personal  injury  may  be 

compromised 1213 

Composition  agreement  is  only  void 

as  to  innocent  parties     .     .     .     1206 

Creditor  accepting  fifty  cents  on  dol- 
lar upon  false  statements     .     .     1212 
compromising   fraudulently 


cannot  set  up  charge  of  fraud 

on  another 1205-1207 

Creditors  agree  to  accept  seventy- 
five  per  cent,  on  the  amount  of 
indebtedness  set  against  "  our 
respective  names"  ....  1298 

induced  to  sign  a  composi- 
tion agreement  accepting  one- 
half  his  claim 1193 

secretly    stipulating    for    a 

preference  to  himself     .     .     .     1205 
who  has  been  guilty  of  fraud 


in  respect  to  other  compound 
creditors 1205 

Damages  for  false  statements  of 

debtor 1212 

Debtor  secretly  giving  one  of  his 
creditors  more  than  compro- 
mise   1221 

Default  of  payment  of  note,  may 

sue  on  original  debt  ....  1218 

Equitable  action  to  rescind  compro- 
mise    1209-1211 

False  statement  as  to  amount  ac- 
cepted by  other  creditors  .  .  1193 


INDEX   TO   CASES. 


507 


PARAGRAPH. 

Fraud  practiced  in  bringing  around 

a  compromise 1215 

Innocent  creditor  repudiating    the 

agreement 1207 

Money  that  may  be  recovered  back,     1214 
.  Must   rescind    fraudulent    compro- 
mise previous  to  suing  on  origi- 
nal claim 1204 

No   objection  to  an   agreement  to 

accept  a  less  sum  than  claim,     1195 

Note  given  in  compromise  and  set- 
tlement of  a  claim  ....  1215 

One  renewed  note  is  not  a  pay- 
ment of  the  preceding' one  .  1220 

Paying  money  under  duress  .     .     .     1214 

Payment  of  check  delayed  for  six 

years 1223 

Plaintiff  knew  the  claim  was  ficti- 
tious   1215 

Rescinding  an  agreement  after  per- 
formance    thereof    by    other 
creditors 1197-1202 

Seeking  to  rescind  a  compromise  of 

a  disputed  claim 1203 

Statute  in  derogation  of  common 

law 1194 

Stockholder's  personal  liability  for 

corporate  debts 1194 

Successive  renewal  notes  are  simply 

extensions  from  date  to  date,     1219 

Taking  debtor's  note  for  an  existing 
debt  does  not  merge  or  extin- 
guish it 1217-1220 

Tender  without  qualification  or  con- 
ditions    1203 

Third  person  agreeing  to  pay  one 
creditor  more  than  others  got 
under  compromise 1221 

When  a  check  becomes  due  imme- 
diately   -  •  •  i222 

Where  a  composition  deed  is  not  a 

relinquishmentof  all  liabilities,     1300 

default  is  made  in  payment,     1218 

— — —  drawer  of  a  check  has  no 

funds  at  the  time  in  bank  .    .      1222 

— —  a  note  is  given  in  compro- 
mise    1215 

CONFEDERATE  CURRENCY, 
Page  173. 

Actual  value  of  notes  at  date  of  pay- 
ment .' 1226 

Confederate  notes  cannot  be  consid- 
ered as  commodities  merely  .  1227 

Co-surety  discharged  judgment  by 

paying   Confederate    money  .       1224 

Fact  that  payment  of  a  note  was  in 
Confederate  State  Treasury 
notes  1225 

Judgment  rendered  upon  a  contract 

payable  in  Confederate  notes  .     '1227 


PARAGRAPH. 

Sale  of  property  for  cash  with  refer- 
ence to  Confederate  notes  .  .  122ff 

Value  of  Confederate  currency,  at 

the  payment 1224 

of  Confederate  notes  as  com- 
pared with  gold  .......  122& 

CONFLICT  OF  LAWS,  Page  174. 

Assignment  by  virtue  of  or  under  a 

foreign  law 1232 

Contract  for  forbearance  made  in 
one  State  is  binding  according 
to  the  laws  of  that  State  .  .  .  1233- 

valid  under  laws  of  Michi- 
gan    1233- 

Court  decisions  of  one  State  upon 
question  of  commercial  law  are 
not  obligatory  upon  courts  of 
other  States 1230 

Debt  barred  by  statute  sufficient 

consideration  for  new  promise,  1235* 

Decisions  in  conflict  with  the  prin- 
ciples of  common  law  concurred 
in  by  courts  of  this  State  .  1230, 1231 

of  courts  of  one  State  upon 

questions  of  commercial  law 

upon  courts  of  other  States,  1230, 1231 

In  respect  to  the  time,  mode  and 
extent  of  the  remedy  lex  fori 
governs 122& 

Law  forbidding  an  individual  from 
doing  business  under  a  firm 
name 1229 

Laws  providing  for  a  set-off,  ex- 
empting property  from  levy  and 
sale  for  debt  or  exempting 
wages 122S 

Local  law  governs  in  determining 
the  validity,  and  in  the  con- 
struction of  contracts  ....  1228 

Prohibiting  an  individual  doing 

business  under  firm  name  .  .  1229 

Usury  laws  of  one  State  enforced 

in  another  State 1233- 

CONSIDERATION,  Page  175. 

Action  upon  a  written  contract,  re- 
sort may  be  had  to  parol  evi- 
dence    1238 

Agreement  to  forbear  proceedings 
is  a  valid  consideration  for  a 
promise,  though  claim  is  doubt- 
ful .  ..........  1236 

Copartner  giving  his  individual  note 

after  dissolution  of  firm  .  .  .  12391 

Creditor  releasing  one  member  of 
insolvent  firm  from  liability  for 
firm's  debts 1239 

Debt  barred  by  statute  sufficient 

consideration  for  new  promise,  1235 

Note  given  for  a  draft  assigned  by 


508 


INDEX   TO   CASES. 


PARAGRAPH. 

the  payee  of  the  note  to  the 
maker  under  agreement    .    .      1237 

Note  given  for  draft  with  agree- 
ment at  some  time  if  note  could 
not  be  "  collected  or  realized,"  1237 

Parol  evidence  impeaching  the  con- 
sideration of  an  agreement  .  1238 

evidence    may  be  received 

although  the  consideration  for 

a  promise  may  be  expressed  .      1238 

Promise  expressed  in  separate  writ- 
ing of  the  parties 1238 

Promissory  note  given  by  one  of  the 
members  of  a  copartnership 
after  its  dissolution 1239 

'Waiver  of  a  legal  or  equitable  right 
is  a  sufficient  consideration  to 
support  a  promise 1234 

CONSTITUTIONAL   LAW,  Page   176. 

Charter  may  be  lost  without  inter- 
vention of  courts 1240 

Default  as  to  limitation  imposed  .  1240 

Omission  or  violation  of  charter  .  1240 
Power  of  legislature  over  charters 

granted   by  it 1240 

CONSTRUCTION  OF  STATUTES, 
Page  176. 

Courts  are  not  controlled  by  the  con- 
struction of  statutes  by  public 
officers .  ,  1241 

Practical  construction  put  upon 

statutes 1241 

Public  officers  construction  of  stat- 
utes   1241 

CONTRACT,  Page  176. 

Absence  of  a  stipulation  as  to  time 
when  an  act  is  contracted  to  be 
done 

Acceptance  of  an  offer  before  notice 
of  withdrawal  is  binding  . 

Action  for  a  breach  of  contract  must 
be  brought  by  the  party  with 
whom  contract  was  made  .  . 

on     a    contract    must    be 


brought,  as  a  general  rule,  by 
the  party  interested  therein  . 
upon  a  written  contract  as 


it  is,  which  fails,  all  further 
action  is  estopped  thereby  .  . 

Acts  or  assent  of  all  the  parties  to 
a  contract  is  necessary  to  re- 
scind it 

Act  which  is  forbidden  by  a  statute, 
or  the  common  law,  whether  it 
be  bad  in  itself  or  merely  pro- 
hibited ,  •  . 


1321 
1263 

1295 
1305 
1376 
1301 

1342 


PARAGRAPH. 

Agreement  as  to  a  contribution  of 
a  certain  sum  for  the  benefit  of 
fourth  party 1267 

between  an  agent  of  an  in- 
surance company  and  an  appli- 
cant for  insurance  ....  1363 

by  one  of  three  parties  to 

the  other  two,  all  three  of  whom 
were  equally  obliged  to  a  fourth 
party 1270 

in  writing  may  be  waived, 

varied  or  annulled,  by  a  subse- 
quent oral  agreement  of  the 
parties 1282 

of    a    creditor,    who    has 

bought  his  debtor's  property  to 
return  it  for  a  consideration     .     1284 

to  answer  for  the  debt  of  an- 
other must  be  in  writing  and 
based  upon  sufficient  consider- 
ation   1826 

to  release  debtor  of  all  his 

indebtedness  provided  that  all 
creditors  sign  it 1299 

under    seal,   wherein   one 

person  makes  a  promise  to  an- 
other for  the  benefit  of  a  third 
person 1333 

which  is  capable  of  a  con- 


struction which  will  uphold  it,     1249 

An  authorized  sale  by  a  broker  of 
stock  purchased  by  him  for  a 
customer 1398,  1399 

Application  of  the  rule  forbidding 
the  varying  of  written  instru- 
ments by  parol  proof ....  1359 

A  price  being  stated  for  work  to  be 
done  under  advertised  proposal 
where  competition  is  required,  1385 

Assignment  of  a  lease  without  war- 
ranty acts  the  same  as  a  quit 
claim 1317 

Attaching  creditor  cannot  defend  an 
action  brought  by  an  assignee 
of  a  debtor  for  conversion  of  a 
chose  in  action 1397 

Attachment  against  property  under 
a  charge  that  debtor  was  about 
assigning  to  the  injury  of  credi- 
tors   1400 

Between  creditor  and  principal,  or 
creditor  and  surety,  without 
concurrence  of  co-sureties  .  .  1289 

Bringing  an  action  to  enforce  a 
contract  after  knowledge  of  its 
fraudulent  nature 1355 

Burden  of  proving  the  truth  of 

statements  alleged  to  be  false,  1367 

Capital  stock  of  a  corporation  is  the 
money  or  property  put  into  the 
corporate  fund 1370 


INDEX   TO    CASES. 


509 


PARAGRAPH. 

Cardinal  rule  in  the  construction  of 

all  written  instruments  .  .  .  1286 

Cause  of  action  relating  to  the  sub- 
ject matter  of  a  patent  right  .  1290 

Change  of  ownership  without 

knowledge  of  holder  .  .  .  1243 

of  terms  in  a  written  con- 
tract, the  agreement  to  do  so 
must  be  clear  and  distinct  .  .  1324 

Claim  that  a  corporation  had  no 
power  to  make  a  contract, 
charged  as  a  defence.  .  .  .  1599 

Composition  deed  may  not  re- 
linquish all  liabilities  .  .  .  1300 

Consideration  of  supplies  furnished, 
defendant  agreed  that  crop 
should  belong  to  claimants  .  1327 

Consignment  of  products  by  debtor 
to  his  creditor  with  order  to 
credit  proceeds  on  his  indebt- 
edness  1281 

Constitution  of  a  State  cannot  im- 
pair the  obligation  of  a  con- 
tract   1365 

Construction  of  contracts,  when  the 
meaning  is  obscure,  construc- 
tion may  be  one  of  fact  for  the 
jury 1379 

——  of  words  in  a  contract  that 

makes  contract  unreasonable  .  1252 

Contract  of  sale  to  prevent  a  prose- 
cution for  forgery  of  indorse- 
ments  1242 

Contract  simply  giving  right  to  take 
ore  from  a  mine,  no  interest  of 
estate  being  granted  ....  1244 

Contract  to  deliver  goods  if  a  note 
given  therefor,  is  paid  at  ma- 
turity  1246 

Corporation  may  become  bound  to 
fulfil  a  contract  made  in  its 
name  in  anticipation  of  its  ex- 
istence   1361 

Courts  cannot  protect  the  rash 
against  the  consequences  of 
imprudent  contracts  ....  1245 

Covenant  to  secure  against  liability 
and  one  to  indemnify  against 
damages  arising  from  non-per- 
formance of  contract  ....  1297 

Creditor  agreeing  to  look  to  another 
source  than  the  promisor  for 
part  payment 1331 

.  being  induced  to  discharge 
his  debtor  through  a  parol 
agreement  to  pay  the  claim 
made  by  one  who  states  he 
owes  said  debtor 1308 

— — —  receiving  a  partial  payment 

before  any  breach  of  contract  .  1331 

Creditors  agree  to  accept  seventy- 


PARAGRAPH. 

five  cents  of  indebtedness  "  set 
against  our  respective  names"      129& 
Deed  having  been  delivered  before 

payment  of  purchase  money   .     1325- 
made  by  an  intoxicated  per- 
son      1245- 

-,  though  executed  before  a 


mortgage  of  same  property,  is 
not  delivered  until  after  the 
execution  and  record  of  a 
mortgage  second 1388 

Degree  of  proof  to  establish  a  right 
to  extinguish  a  former  con- 
tract   1275- 

Delivery  of  products  to  the  carrier 
is  equivalent  to  a  delivery  to 
the  consignee 1281 

Dissatisfaction,  as  to  goods  de- 
livered, must  be  real  and  not 
pretended 1294 

Doubt  as  to  the  construction  of  an 
instrument  prepared  by  one 
party,  must  be  construed  favor- 
able to  the  latter 1378 

Equity  can  no  more  enforce  a  void 
contract  than  can  a  court  at 
law 1287 

will  not  readily  set  aside  a 

reasonable  contract,  made  for 

the  sake  of  peace 137T 

Erroneous  opinion  expressed  by  the 
seller  of  a  claim  to  the  buyer 
thereof  who  knows  the  condi- 
tion of  the  debtor 1368 

Every  contract  must  be  mutual  as  to 

remedy  and  obligation    .     .     .     1269" 

Evidence  must  be  clear  and  satis- 
factory to  extinguished  a  con- 
tract of  same  parties  ....  1275 

of  fraud  committed,  by  mis- 
reading a  contract  to  de- 
fendant   1268 

showing    that   it   was   in- 


tended to  reduce  an  agree- 
ment to  writing 1350 

Excuse  for  non-performance  of  an 
express  condition  in  a  contract, 
may  be  accepted 1384 

Executory  contract  for  the  purchase 
of  lands  entered  so  under  false 
representations 1598 

Expression  "  payable  as  con- 
venient "  does  not  excuse  de- 
fendant from  paying  anything,  1312 

Failure  and  refusal  of  a  factor  to 
fulfil  his  contract  with  a  pro- 
ducer  1310 

Fiduciary  relations  between  parties 
who  are  of  legal  capacity  are 
only  avoidable  for  fraud.  .  .  1346: 


510 


INDEX   TO   CASES. 


PARAGRAPH. 

Forfeiture  right,  in  case  of  non- 
performance  by  other  party  .  1293 

Tor  the  delivery  of  property  being 
entire,  the  promisee  is  not 
bound  to  receive  a  part  .  .  .  1307 

..  the  sale  of  wheat  in  store 

for  future  delivery,  requiring 
buyer  to  put  up  margins.  .  .  1279 

Founded  on  an  act  which  a  statute 
prohibits  under  a  penalty  is 
void 1348 

upon  mutual  and  concur- 
rent promises 1328 

.Fulfillment  of  a  contract  beyond 
time  specified  (one  year)  ful- 
filled after  allotted  time .  .  .  1290 

Further  time  given  to  pay  install- 
ments in  consideration  of  a 
promise  to  pay  the  debt .  .  .  1382 

<Goods  bought  by  one  who  conceals 

his  insolvency 1253 

ordered,  buyer  agreeing  to 

pay  if  satisfied  therewith  .  .  1294 

•Guaranty  is  an  original  under- 
taking upon  which  the  guaran- 
tor is  liable  .  • 1272 

Having  an  unlawful  or  immoral 
cause,  cannot  be  the  basis  of 
auxiliary  contract 1349 

Holder  of  a  note,  when  selling  it, 
promises  that  it  is  good  and 
will  be  paid  when  due  .  .  .  1372 

Illegal  contract  will  not  be  enforced 

by  a  court  of  equity  ....  1337 

Inducing  a  party  to  omit  strict  per- 
formance of  a  contract  fraudu- 
lently  1293 

.Innocent  party  buying  goods  from 
one  who  obtained  them  fraudu- 
lently   1253,  1254 

Instrument  prepared  by  the  party 
to  be  held  liable  under  it,  is 
ambiguous  in  its  terms  .  .  .  1340 

Insurance  of  a  person  who  is  then 
in  extremis  unknown  to  the 
agent 1364 

In  the  matter  of  a  contract  a  dis- 
tinction sometimes  exists  be- 
tween a  motive  and  the  con- 
sideration   1394 

Is  binding  when  signed  by  the 

party  making  it 1353 

It  is  competent  to  the  parties,  at 
any  time  before  breach  of  it  to 
verbally  change  a  contract .  .  1283 

Law  will  not  presume  a  contract  is 
void,  when  it  is  capable  of  a 
lawful  construction  ....  1383 

Laws  subsisting  at  the  time  and 
place  of  making  of  a  contract, 


PARAGRAPH. 

and    where   it    is   to   be   per- 
formed      1352 

Liability  of  A.  who  directs  B.  to 
give  credit  to  C.  for  such  goods 
as  he  may  order 1304 

License    to    act   as  a   real   estate 

broker  is  not  necessary  .     .     .     1322 

Lunatic  may  be  liable  upon  exe- 
cuted contract  for  articles 
suitable  to  his  degree  .  .  .  1256 

Mandamus  is  not  the  proper  remedy 
to  enforce  the  performance  of 
a  duty  upon  officers  of  a 
corporation  organized  for 
profit  merely  ......  1369 

Maxim,  that  the  express  mention  of 
one  thing  implies  the  exclu- 
sion of  another 1330 

Members  of  Board  of  Trade  may 
bind  themselves  beyond  the 
rules  of  the  board 1280 

Memorandum  which  is  sufficient  to 
bind  an  agreement  to  sell  real 
estate 1278 

Mistake  in  drafting  of  a  contract 
subsequently  corrected  by  the 
parties  to  it 1282 

Modification  of  a  contract,  offered 
by  one  party,  made  by  the 
other 1342 

Money  advanced  honestly  to  a 
lunatic  by  one  who  did  not 
know  of  his  state  .  .  .  1257,  1258 

Must  be  held  to  have  been  made 
when  the  last  act  necessary  to 
complete  it  was  done.  .  .  .  1347 

New  York  Exchange  constitution 
and  by-laws  are  obligatory 
upon  its  members  ....  1256 

Note  given,  conditionally,  to  bind  a 
parol  contract  for  the  convey- 
ance of  land 1306 

given  in  consideration  of  a 

marriage,  which  is  afterwards 
solemnized 1291 

given  upon  certain  condi- 
tions   1246 

intrusted  by  the  maker  to 

another   to   be    issued    for    a 
special  purpose,  is  diverted     .     1396 
misapplied   as  regards   the 


object  for  which  it  was  issued,     1274 
Notice  of  the  acceptance  of  a  con- 
tract must  be  given  to  one  mak- 
ing it       1288 

Oath,  unsupported  of  one  party  to 
an  instrument  will  not  defeat 
one  opposing  oath  ....  1264 
Obligation  of  a  contract,  valid  at 
the  time  of  making  by  the  laws 
or  by  judicial  decisions  .  .  1389 


INDEX   TO   CASES. 


511 


PARAGRAPH. 

Obligation  to  pay  stated  sum  for  the 
purchases  of  an  appointed 
agent 1286 

Of  sale  induced  in  part  by  desire 
on  behalf  of  both  vendor  and 
buyer 1242 

Offer  may  be  withdrawn  any  time 

before  the  other  party  has  ac-      • 
cepted   it 1262 

Omission  of  time  and  delivery  of 
goods,  in  a  contract,  law  fixes 
time  as  on  demand  after  de- 
livery   1316 

One  cannot  recover  for  a  breach  of 
a  contract  who  is  the  cause  of 
its  occurrence 1354 

——  of  the  parties  cannot  rescind 
unless  he  restores  or  offers  to 
restore  the  other  his  position  .  1251 

Open  to   two  constructions,   lawful 

and  unlawful 1250 

Option  to  rescind  contract  for 
fraud,  the  party  so  inclined 
must  be  in  a  state  to  rescind,  1292 

Parol  contract  for  the  sale  of  land, 
all  its  terms  must  be  shown  by 
full,  complete  proof,  satisfac- 
tory and  indubitable  .  .  .  1336 

.  evidence  is  admissible  to 
show  a  verbal  contemporaneous 
agreement 1265,  1266 

-^— —  evidence  that  the  operation 
of  a  contract  was  limited  to  a 
particular  time 1313 

Parties  having  reduced  their  con- 
tracts to  writing,  conversations 
controlling  their  specifications,  1392 

Party  binding  himself  to  deliver 
personal  property  is  only  re- 
lieved by  refusal  of  the  other 
party  to  receive  it  ....  1373 

entitled  to  rescind  a  contract 
on  the  ground  of  fraud  loses 
that  right  on  bringing  an  action 
to  enforce  the  contract  .  .  .  1355 

,  in  part  performance  of  an 
agreement,  advanced  money, 
or  done  an  act,  and  then  re- 
fuses to  proceed  to  its  conclus- 
ion   1387 

— — —  is  guilty  of  negligence,  when 
he  signs  a  contract  without 
reading  it 1362 

.— —  whose  duty  it  is  to  prepare 
a  written  contract  according  to 
previous  agreement,  materially 
changing  the  terms  ....  1374 

— — —  who  stands  by  and  sees  work 
in  the  erection  of  a  building  to 
completion 1323 

•  who  violates  a  contract  can- 


PARAGRAFH. 

not  avail  himself  of  its  provis- 
ions,   etc ,    .    .     1273 

Payment  of  money,  acknowledged 
to  be  owing,  where  no  time 
for  payment  is  fixed  ....  1271 

of  the  purchase  money  is  a 

condition  precedent  to  delivery 
ofdeed 1325 

Persons,  friends  of  a  purchaser, 
agree  to  defend  and  free  ven- 
dor from  all  claims,  etc.  .  .  1393 

Person  represents  that  he  owes  to 
the  debtor  of  another  a  debt  of 
equal  amount,  substitutes  him- 
self in  place  of  the  debtor  by 
parol  agreement  ....  1308 

Positive  promise  which  is  not  con- 
trary to  law  or  public  policy,  1259 

Proffer  to  perform  a  contract,  made 
in  defence,  should  show  an 
ability  to  comply  ....  1321 

Promise  by  one  party  to  do  that 
which  he  is  already  under  a 
legal  obligation  to  do  ...  1356 

to    pay    a    sum    of  money 

specified  (and  acknowledged  to 

be  due),  when  crops  are  sold,     1366 

to    pay   for    property   pur- 
chased, "  out  of  the  proceeds  of 
the  first  cotton  ginned  "      .     .     1339 
to  pay  with  interest  a  sum  of 


money  specified  upon  a  con- 
tingency .......  1386 

Property  sold  and  delivered  to  a 
third  person,  on  promise  of  de- 
fendant to  accept  his  drafts  .  1334 

Purchase  of  grain,  for  future  de- 
livery, for  another  on  margin 
does  not  create  the  relation  of 
pledger  and  pledgee  .  .  .  1277 

Purchaser  at  an  execution  sale  can- 
not be  excused  under  plea  of 
ignorance 1276 

of  real  estate  fails  to  com- 
ply with  his  contract  under 
which  he  obtained  possession,  1390 

Purchases  for  future  delivery,  on 
margins,  do  not  require  a 
notice  of  the  time  and  place  of 
a  sale 1277 

Reduction  of  an  agreement  to 
writing,  signed  by  the  parties, 
is  not  necessary  to  its  perfec- 
tion as  a  contract  ....  1338 

Reformation  of  contracts  can  only 
be  exercised  where  there  has 
been  a  mutual  mistake  .  .  .  1359 

Refusal  to  accept  goods  sold,  meas- 
ure of  damages  is  the  difference 
between  the  contract  and  the 
market  price  at  time  of  refusal,  1303 


512 


INDEX  TO   CASES. 


PARAGRAPH. 

Repeal  of  a  statute  prohibiting  an 
act,  will  not  validate  a  con- 
tract void  when  it  was  made,  1348 

Rules  of  a  board  of  trade  must  be 
construed  between  its  members 
as  part  of  contract  ....  1280 

Sealed  contract,  being  a  specialty, 
cannot  be  avoided  by  a  plea  it 
was  voluntary 1309 

Seizer  and  sale  of  property  under  a 
law  that  is  afterwards  declared 
unconstitutional 1395 

Signed  by  one  party  only,  is  accept-  • 
ed  by  the  other  party,  becomes 
binding  by  both  parties  .  .  1315 

Stipulation   expressly  exempting  a 
common  carrier  from  liability    * 
for    negligence 1247 

Stock  sold,  the  buyer  agreeing  to 
resell  it  to  the  seller,  who  re- 
fused when  it  was  tendered  to 
him 1302 

Subscription  for  shares  in  a  patent 
right,  to  be  paid  for  by  induc- 
ing others  to  subscribe  .  .  .  1329 

Sunday  contracts  are  void,  not  at 
common  law,  but  because  of 
the  penal  statute 1225 

Those  who  violate  law  in  their  deal- 
ings with  one  another,  are  left 
in  the  same  condition  they 
placed  themselves  in  ...  1337 

Time  for  delivery  of  a  thing  not 
having  been  fixed,  reasonable 
time  will  be  allowed  .  .  .  1345 

Transfer  of  business  does  not  al- 
ways transfer  right  of  action 
to  enforce  payment  of  a  debt  .  1243 

.  of  contract  to  convey  prop- 
erty on  a  payment  of  part  of 
purchase  money,  which  con- 
tract was  assigned  to  third  per- 
son   1381 

.  of  a  note  should  be  made 
by  indorsement,  unless  other- 
wise agreed 1318 

Two  persons,  for  a  consideration 
sufficient  between  themselves 
convenant  to  do  some  act, 
which,  if  done,  would  benefit 
a  stranger 1371 

Uncertainty  or  doubt  as  to  mean- 
ing of  words  or  phrases  in  a 
contract •  .  .  1252 

Understanding  of  one  party  to  a 
contract  is  not  to  govern  its 
construction 1255 

Valid  contract  subsisting  between 
the  parties  may  be  changed  be- 
fore its  breach 1331 

*  Value   received  "  written  on  the 


PARAGRAPH. 

back  of  a  note  impart  a  con- 
sideration      1272 

Vendor  receiving  a  part  of  purchase 

money  for  real  estate  .       .     .     1325 

Vendee  reserves  the  right  to  re- 
scind contract  for  sale  of  goods 
or  it  is  rescinded  by  reason  of 
inherent  vice 130$ 

Verbal  agreement  by  seller  to  take 
back  a  lot,  if  the  purchaser  did 
not  like  it 1335 

contract  not  to  be  performed 

within  one  year 1296- 

promise    by    an    executor, 


either  with  or  without  assets, 

to  legatee 1260 

What  constitutes  a  contract  in 

severally 1286- 

is  reasonable  time,  as  an 

abstract  question  may  be  one 

of  law 1321 

When  a  third  party  may  maintain 
an  action  on  a  contract  made 
expressly  for  his  benefit  .  .  1305- 

binding — either  party  may 

withdraw  and  refuse  to  com- 
plete a  contract  before,  etc.  .  1261 

;  imposed  upon  through  fraud 

and  artifice 1245' 

parol  evidence  is  admissible 

to  prove  a  verbal  agreement  re- 
garding a  written  contract  .  .  1335- 

work  is  done  under  a  con- 


tract, the  terms  of  the  contract 
should  settle  the  sum  to  be 
paid 1323 

Where  alleged  verbal  agreement 
cannot  be  invoked  by  either 
party  to  a  contract  ....  1344 

laws  affect  the  validity,  con- 
struction, discharge  or  enforce- 
ment of  a  contract  ....  1352 

two   contracts  between  the 

same   parties  are  distinct,  one 
of  which  is  not  complied  with,     1343- 
two  parties  agree  as  to  what 


shall  be  done  in  case  one  party 

fails  to  perform 1319 

With  persons  contemplating  the 
formation  of  a  corporation,  is 
simply  a  personal  contract  .  .  1360 

Written  agreement  intended  to  be 
signed  by  several  persons,  not 
signed  by  all  of  them  .  .  .  124& 

agreement  may  be  modified, 

explained,  reformed  or  alto- 
gether set  aside  by  parol  evi- 
dence  1266 

agreement  of  a  debtor,  who 


borrowed  certain  bonds,  to  re- 
turn bonds  of  same  kind 


1351 


INDEX   TO   CASES. 


513 


PARAGRAPH. 

Written  agreement  signed  without 
reading  it,  is  no  ground  for  in- 
troduction of  parol  evidence,  1311 

contracts  are  to  be  inter- 
preted by  the  court,  not  by 
witness 1314 

contracts  containing    terms 

not  presenting  a  case  of  latent 

ambiguity 1312 

contract  having    no    latent 


ambiguity  can  neither  be  quali- 
fied nor  controlled,  enlarged 

nor  diminished 

•  matter    must    prevail  over 

printed  matter  in  case  of  con- 
flict between  them  .... 

CONVERSION,  Page  196. 

Agreement  to  convey  real  estate,  not 
in  writing  is  void 

Attaching  creditor  cannot  defend 
action  brought  by  assignee  of 
the  debtor 

Conveyances  by  a  solvent  father  to 
his  sons,  in  consideration  of 
services  rendered 

Deed  recorded  after  fifteen  days  is 
notice  to  purchasers  .... 

Grantee,  in  a  conveyance  by  deed 
poll  containing  a  mortgage 
assumption  clause  .... 

of  property  conveyed  in 

fraud  of  creditors  disposes  of 
it  before  proceedings  are  insti- 
tuted to  reach  it 

in  a  deed  being  a  bona  fide 


purchaser  for  valuable  con- 
sideration   

Grantor  in  a  deed  covenants  that 
he  was  well  seized,  etc.,  and 
warrants  to  defend  .... 

How  a  devise  of  real  estate  can  be 
revoked  

Insolvent  debtor  seeking  to  prefer 
certain  creditors  by  mortgage, 

Instrument  conveying  property 
must  contain  their  full  de- 
scription of  property  conveyed, 

Land  conveyed  by  one  deed  to  two 
or  more  persons,  who  contrib- 
uted unequal  amounts  of  the 
payment  therefor 

Note  entrusted  to  another  for  a 
special  purpose 

One  who  buys  any  part  of  the 
avails  of  a  scheme  to  defraud 
creditors 

Party  loses  no  right  by  a  mere 
change  in  the  form  of  the 
securities 

Payments  made  for  real  estate  un- 

83 


1358 
1358 

1426 
1397 

1418 
1401 

1411 

1417 
1404 

1422 
1412 
1423 

1413 

1421 
1396 

1415 
1428 


PARAGRAPH. 

der  a  verbal  agreement,  may 
be  recovered  on  refusal  or 
neglect  to  convey  title  .  .  .  142$ 

Property  conveyed  in  fraud  of 
creditor  will  be  reclaimed  for 
benefit  of  creditors  ....  1416» 

Registry  of  a  conveyance  of  an 
equitable  title  is  notice  to  a 
subsequent  purchaser  .  .  .  1420 

Sale   of  all   his  landed   estate   by 

husband  to  wife 1427 

Unauthorized  sale  of  stock  by  a 
broker  of  stock  bought  by  him 
for  a  customer  ....  1398,  1 399 

Voluntary  conveyance  from  father 
to  son,  intended  to  defraud 
creditors 1429 

conveyance    is    void   if    it 

tends  to  hinder  and  delay 
creditors 1414 

conveyance   is  void  against 

creditors  holding  debts  previ- 
ously contracted 1405 

conveyance   of   real   estate 

made  by  husband  just  before 
his  marriage      ....     1408-1410 
conveyance,  though  without 


fraudulent  intent,  is  void  as 
against  creditors 1406 

Where  husband  receives  the  price 
paid  for  a  piece  of  property  be- 
longing to  the  wife  .  .  1424,  1425 

there  is  inadequacy  of  price 

so  gross  that  common  judg- 
ment revolts 1569) 

a  deed  not  recorded  in  fif- 
teen days  becomes  void  as  to 
subsequent  deed  for  valuable 
consideration  without  no- 
tice   1402,  1403 

conveyance  of  the  fee  to  a 

mortgage  will  not  merge 


mortgagee's  rights 

the  registry  of  a  conveyance 


does  not  convey  legal  title 

Withholding  deed  from  the  records 

for  several  years 


1419 
1420 
1407 


CORPORATIONS,  Page  200. 

Absence  of  proof  showing  a  want 
of  authority  on  the  part  of  a 
corporation 1448 

Absolute  transfer  of  stock,  not 
fully  paid  up,  made  in  good 
faith  .........  1452 

Action  for  injuries  caused  by  fraud- 
ulent acts,  or  misapplication  or 
waste  of  corporate  funds  .  .  147T 

Acts  of  a  corporation  that  are  not 
by  itself  illegal  or  prohibited 


514 


INDEX   TO   CASES. 


PARAGRAPH. 

may  be  good  by  the  assent  of 
the  stockholders 1506 

All  inquiry  into  the  original  organ- 
ization of  a  corporation,  once 
recognized  by  Legislative  ac- 
tion   1503 

A  refusal  of  a  corporation,  when  re- 
quested to  bring  suit  against 
defaulting  officer  .....  1479 

Authority  conferred  by  the  trustees 
to  erect  a  church  building, 
would  carry  with  it  the  power 
to  contract  necessary  debts 
therefor 1502 

to    subscribe     for  railway 

stock  authorized  by  the  requi- 
site number  of  voters  does  not 
extend  to  a  consolidated  road,  1457 

Bank  which  issues  bills  for  circula- 
tion as  money  is  a  public  cor- 
poration   1483 

£ona  fide  sale  of  stock  of  a  corpo- 
ration coupled  with  power  of 
attorney  to  vendee  ....  1490 

Bonds,  executed  in  one  state,  in  due 
form,  while  the  mortgage  was 
executed  in  another  ....  1501 

made  payable  to  bearer  or 

order,  and  coupons  attached, 
are  collectible  in  the  hands  of 
bonafide  holder 1436 

Borrowing  money  in  excess  of  its 

legal  power  of  borrowing,  1537-1540 

By-laws  requiring  the  surrender  of 
a  certificate  of  stock  previous 
to  a  transfer  on  the  books  .  .  1498 

•Cannot  gratuitously  condone  or  re- 
lease the  fraud  of  a  defaulting 
officer 1480 

Capital  stock,  franchise,  and  all  the 
real  and  personal  property  of  a 
corporation,  are  justly  liable  to 
taxation 1458,  1459 

•Chartered  bank  buying  up  the  claims 
against  one  of  its  directors, 
who  is  bankrupted  ....  1491 

•Charter  not  requiring  the  payment 
of  a  certain  amount  of  money 
at  the  time  of  subscribing  .  .  1481 

.  provides  that  no  "  stock- 
holder shall  first  offer  his 
stock  for  sale  to  the  corpora- 
tion issuing" 1478 

restricting  a  corporation  in 

its  power  of  loaning  its  money,     1507 

Church  corporation  having  ap- 
pointed a  board  of  trustees 
to  manage  its  business  .  .  .  1499 

City  council  has  no  authority  to 
grant  to  any  person  a  monop- 


PARAGRAPH. 

oly,  even  where  no  express  pro- 
hibition is  found 1466 

City  having  power  to  borrow 
money  and  provide  for  pay- 
ment of  debts,  under  an  ordi- 
nance   1451 

Consolidation  of  two  companies 
does  not  necessarily  work  a 
dissolution  of  both  ....  1517 

Corporation  empowered  under  any 
circumstances  to  issue  negoti- 
able securities,  the  bona  fide 
holder  has  a  right  to  presume 
they  are  just 1473 

has  no  implied  authority  to 

increase  or  diminish  its  capital 

stock 1449 

issuing    bills   as   currency 


without  authority  and  contrary 

to  law     .     .     .     .     .     .     1446,  1447 

Counterclaim  not  allowable  in  an 

action  for  conversion     .     .     .     1513 

Coupons  pass  from  hand  by  mere 
delivery,  but  does  not  impart  a 
guaranty  of  payment  .  .  .  1484 

Creditor's  bill  may  be  maintained 
against  the  directors  of  an  in- 
solvent corporation  for  mis- 
management   1474 

Custom  or  usage  in  a  business  is  not 
binding,  unless  it  is  so  general 
as  to  presume  a  knowledge  of 
it 1519 

Directors  of  a  bank  having  ob- 
tained unpaid  shares  from  a 
subscriber  to  its  stock  sold 
them  at  a  profit  is  bound  to 
account  for  such  profit  to  the 
bank 1472 

of  a  company  are  not  held 

personally  liable  to  find  cash 
for  checks  drawn  by  them  as 

officers 1470 

of  a   corporation   have  no 


power  to  increase  the  capital 
stock,  although  charter  author- 
ized it  to  be  increased  .  14f>5, 1456 

Exists  only  in  contemplation  of  law 

and  by  force  of  the  law  .  .  1476 

Foreign  corporation  does  not  be- 
come a  domestic  one  by  com- 
plying with  laws  of  the  State,  1504 

Goods  sold,  and  credit  given  to  a 
corporation,  an  officer  and  stock- 
holder cannot  be  held  person- 
ally liable  therefor,  although 
they  have  promised  verbally 
to  pay 1433 

Heirs  of  a  deceased  stockholder 

must  comply  with  the  by-laws,  1498 

Illegal  action  of  directors  in  the  in 


INDEX   TO   CASES. 


515 


PARAGRAPH. 

vestment   of  corporate   funds, 
may  not  forfeit  the  money  .     .     1508 

In  absence  of  statutory  restriction, 
a  corporation  may  distribute  its 
property  with  preference  .  .  1440 

Incomplete  instrument,  as  if  any 
essential  part  is  blank,  which 
is  filled  by  a  thief 1475 

Innocent  purchaser  of  stock, taken 
in  good  faith  as  paid  up,  and 
where  the  books  give  notice 
to  the  contrary 1444 

Irrevocable  power  of  attorney,  filled 
up  or  in  blank,  in  hands  of  a 
third  person  is  presumptive 
evidence  of  ownership  .  .  .  1493 

Is  liable  for  its  wrongful  acts  and 
omissions,  and  for  the  acts  of 
its  agents 1514 

Lease  to  a  corporation  is  not  deter- 
mined by  its  dissolution  .  1510-1512 

Liability  of  officers  of  corporations 

signing  false  reports  ....     1438 

of  stockholder  for  debts  of 

the  corporation  to  amount  of 

his  stock 1441 

of  the   officials  of  foreign 

companies 1504 

Liquidators  of  a  corporation,  elected 
by  stockholders  in  due  form, 
will  not  be  displaced  by  any 
court -  ...  1497 

Loss  suffered  by  stockholder,  in 
consequence  of  a  call  author- 
ized by  charter,  made  upon 
each  stockholder  to  pay  install- 
ment on  stock 1489 

May  be  bound  by  a  written  con- 
tract, though  a  private  seal  of 
one  of  its  officers  was  used  .  .  1500 

Members  of  a  corporation  to  whom 
a  certificate  as  a  corporation 
has  -been  issued  by  the  Secre- 
tary of  the  Commonwealth  .  .  1465 

Municipal  aid  to  railways  by  the 

issue  of  bonds 1437 

Notice  of  allotment  of  shares  sub- 
scribed for,  prevents  a  with- 
drawal of  subscription  .  1468, 1469 

Officer  and  stockholder  of  a  cor- 
poration who  states  to  a  credi- 
tor that  the  corporation  is  in 
his  opinion  solvent  ....  1435 

•One  for  whom  another  has,  without 

authority,  assumed  to  act  .  .  1432 

to  whom  shares  have  been 

transferred    gratuitously,  does 
not,     by     accepting    become 

a  debtor  to  the  company,  1453.1454 

who  deals  with  a  corpora- 
tion in  its  corporate  capacity,     1503 


PARAGRAPH. 

Original  holders  of  the  stock  of  a 
corporation  are  liable  for  un- 
paid balance  at  suit  of  assignee 

1461-1463 

Personal  liability  of  officers  and 
stockholders  of  a  corporation 
for  its  debts  must  arise  only 
out  of  some  statutory  provi- 
sion   1485 

Persons  dealing  with"  a  company  are 
bound  to  take  notice  of  its  posi- 
tion, as  evidenced  by  its  articles 
of  association 1471 

Power  to  issue  bonds  carries  with 
it  the  power  to  cancel  those 
already  issued,  but  not  put  in 
circulation 1450 

President  is  a  trustee,  and  will  not 
be  permitted  to  create  antago- 
nistic interests  to  that  of  his 
beneficiary 1495 

of  a  bank  may  contract,  on 

sufficient  consideration  with  de- 
fendant in  a  judgment     .     .     .     1482 

of  a   business   corporation 

has  no  power,  as  such,  to  con- 
stitute a  general  manager    .     .     1442 
of  a  corporation  has  no  au- 


thority to  bind  his  company  to 

pay  an  unauthorized  loan,  1431,  1432 

Private  corporation  cannot  repeal  a 
by-law  so  as  to  impair  rights 
acquired  under  it 1516 

Privilege  of  buying  increased  stock, 
within  sixty  days,  in  propor- 
tion to  holdings 1492 

Property  of  every  corporation  is  to 
be  regarded  as  a  trust  fund  for 
the  payment  of  its  debts  .  .  1515 

Purchase  of  stock  of  a  corporation 
to  be  paid  out  of  the  salary  of 
the  buyer,  who  was  an  officer 
of  the  company 1487 

Railway  company,  acting  under 
Iowa  laws,  having  power  to 
issue  its  own  bonds,  may  guar- 
antee bond  of  cities,  etc.  .  .  1460 

Railway  corporation  seeking  to  take 
property  in  invitum  for  the 
purpose  of  its  road  ....  1439 

Remedy  given  by  the  statutes  of 
another  state  to  creditors  of  a 
corporation 1445 

Stockholders  are  severally  and  indi- 
vidually liable  to  creditors  to 
an  amount  of  their  stock  .  .  1494 

Subscriber  for  certain  shares,  by 
accepting  the  same  and  paying 
an  assessment  thereon  .  .  .  1467 

Superintendent  has  no  authority  by 
virtue  of  his  office  to  borrow 


516 


INDEX   TO   CASES. 


PARAGRAPH. 

money  on  the  credit  of  his 
employer 1431 

Unissued  shares  of  stock  of  a  corpo- 
ration are  not  assets  in  its 
hands 1453 

When  officials  refuse  to  bring  an 
action,  a  stockholder  may  do 
so 1477-1496 

Where  a  corporation,  in  excess  of 
its  powers  conferred  by  its 
charter,  receives  a  sum  of 
money .  1430 

a  failure  to  make  a  payment 

on  subscription  according  to 
agreement  does  not  vitiate  the 
subscription 1481 

.  a  franchise,  to  be  a  corpora- 
tion, can  become  a  subject  of 
sale  and  transfer 1443 

a  note  may  be  declared  void 

when   discounted  without  au- 
thority of  law    ....     1507-1509 
directors,  also  have  no  au- 


thority to  borrow  money,  yet, 
so  doing,  binds  their  company, 

—  law  ceases  to  operate  and 
is  no  longer  obligatory,  corpo- 
rations have  no  existence    . 

—  shares  of  a  corporation  are 
isued  in  return  for  a  forged  as- 
signment of  a  certificate     . 

stockholders  have  no  right 


1518 


1476 


1434 


to  appropriate  any  part  of  the 
assets  to  pay  salaries  due  them 
as  officers 1488 

stockholders  need  not  be 

individually  made  parties  in  a 
creditor's  suit 1464 

Word  "  members  "  is  synonymous 
with  "  stockholders  "  when  ap- 
plied to  a  corporation  .  .  .  1505 


DAMAGES,  Page  21 2. 

Action  for  damages  abates  on  death 
of  the  defendant 

Breach  of  warranty  and  damage  in 
the  sale  of  a  chattel  .... 

Damages  for  negligence  or  delay  in 
the  transportation  of  goods  by 
carriers 

Difference  in  goods  as  warranted 
and  as  they  really  were . 

For  false  representations,  made  on 
sale  of  a  security 

refusing  to  receive  that  which 

was  contracted  for  and  ten- 
dered properly 

In  an  action  to  recover  the  price  of 
goods  sold  and  not  delivered  . 

Liability  of  recorder  is  to  the  party 


1530 
1529 

1522 
1521 
1523 


PARAGRAPH, 

who  asks  and  pays  for  the  cer- 
tificate      1529* 

Measure  of  damages  for  negligence 
or  delay  in  the  transportation 
of  goods.  .  .  .  .  .  .  .  1522 

Negligence  alone  is  not  to  be  vis- 
ited with  punitive  damages  .  1526 

Recorder  of  deed's  liability  for  a 

false  certificate  of  researches  .     1529 

Statute  of   limitations,  as  to  false 

certificates  to  titles  of  land       .     1525 

When  goods  are  attached  and  sold 

by  the  sheriff 1524 

Where  an  examiner  of  title  to  real 

estate  gives  a  certificate  of  title,     1525 

benefits  are  beyond  that  of 

the  amount  of  money  paid  .     .     1523- 

false    representations    are 

made  on  sale  of  security    .     .     1523 

DEBTOR  AND  CREDITOR,  Page  213^ 

After  being  discharged  of  his  debts 
by  a  deed  of  composition,  vol- 
untarily gives  security  for  a 
discharged  debt 1561 

Agreement  made  between  one  cred- 
itor with  another  outside  of  the 
composition 1559 

with  one  creditor  for  an  ad- 


vantage to  him  over  another   .     1559 

Appropriation  of  money,  by  the 
creditor,  received  without  in- 
structions from  payor  .  .  .  1531 

Bankrupt  owes  a  debt  to  two  per- 
sons jointly,  and  holds  a  joint 
note  given  by  one  of  them  .  .  1563- 

By  receiving  and  selling  a  certifi- 
cate in  writing,  not  negotiable, 
the  creditor  changes  his  rights, 
1546,1547 

Charge  of  fraud  must  be  based 
upon  an  intent  to  defraud  cred- 
itors   1533 

Claim  illegal  and  absolutely  pro- 
hibited by  statute  cannot  be 

arbitrated 1542 

of  money  due  to  wife  from 


husband  should  be  rejected 
unless  proved  clearly  .  .  .  1532 

Claims  against  estate  of  dece- 
dents, resting  on  mere  oral  tes- 
timony   1558 

Clear,  distinct  and  unequivocal 

promise  only  will  revive  a  debt,  1555 

Concealing  facts  when  negotiating 
for  a  discharge  of  a  debt  at 
a  discount 1534 

Constituting  a  disposition  of  prop- 
erty by  a  debtor  with  intent  to 
defraud 1533- 

Creditor  selling  to  a  third  person  a 


INDEX   TO   CASES. 


517 


PARAGRAPH. 

negotiable   instrument   cannot 
sue  on  original  debt  ....     1547 

Debt  claimed  by  a  wife  against  her 

husband 1532 

Exchange  of  values  may  be  made 
at  any  time,  though  one  be  in- 
solvent   1556 

Extension  of  time  of  payment, 
right  to  proceed  against  secur- 
ity is  reserved 1536 

Fund  created  to  pay  a  particular 
debt  or  lien,  applied  to  the 
payment  of  another  debt  .  .  1562 

•General  creditor  of  a  firm,  having 
no  execution  or  attachment, 
has  no  lien 1545 

Insolvency  of  savings  bank  deposi- 
tors, are  entitled  only  to  rata- 
ble payment 1541 

Insolvent  debtor  is  disqualified  from 

being  an  administrator  .     .     .     1552 

Lending  money  to  a  corporation  in 
excess  of  its  legal  power  to 
borrow 1537-1540 

May,  without  providing  for  exist- 
ing debts,  create  new  debt 
bona  fide 1535 

Money  expended  in  favor  of  another, 

after  his  death 1554 

•"  Mutual  credit  "  is  a  knowledge 
on  both  sides  of  an  existing 
debt 1557 

Non-resident  debtors  may  be  sued 

wherever  found 1560 

One,  on  an  adequate  consideration 
agrees  to  pay  what  he  owes  a 
particular  person 1543 

Order  on  a  third  person  for  the 
payment  of  money,  in  the  ab- 
sence of  evidence  ....  1544 

Owner  of  a  coupon,  who  does  not 
own  the  bond  from  which  it 
was  attached 1549 

Paper  signed  by  creditors  in  con- 
sideration of  one  dollar  paid 
us  to  discharge,  etc 1534 

Promise  made  to  a  creditor,  not  a 

debtor,  is  binding      ....     1543 

Taking  promissory  note  from  one 
of  several  joint  debtors,  ot 
from  third  person 1548 

Term  "  mutual  credit "  indicates  a 
knowledge  of  both  parties  of 
an  existing  debt  .  .  •  .  .  1557 

Trader  who  is  not  able  to  pay  all 
his  debts  in  the  usual  ordinary 
way 1550,  1551 

When  a  debtor  would  become  liable 

for  certain  discharged  debt      .     1534 

Where  an  agreement  is  not  a  dis- 
charge of  a  debt 1534 


PARAGRAPH. 

Where  debtors  residing  without  the 
State  are  excluded  from  the 
statutes 1560 

DEEDS,  Page  216. 

Absolute  on  its  face,  otherwise  con- 
taining a  clause,  subject,  never- 
theless, to  the  right,  etc. 

Actual  delivery  of  a  truit  deed  to 
the  trustee  therein  named  .  . 

Although  a  deed  is  inter  paries,  a 
covenant  therein  made  with  a 
third  person 

Certified  copy  of  a  lost  deed,  not 
intentionally  destroyed,  from 
register's  office 

Condition  in  a  deed,  granting  an 
estate  in  fee,  which  prohibits 
liquor  dealings 

Covenants  with  grants  to  reconvey 
lands,  upon  return  of  money 
paid 

Deed  not  certified  and  acknowl- 
edged, recorded  

with  power  of  sale,  to  se- 


cure a  debt 

Delivery  of  a  deed  implies  its  ac- 
ceptance by  the  grantee,  in  the 
absence  of  fraud  .  .  .  1573, 

Description  of  a  deed  do  not  corre- 
spond so  as  to  describe  the 
same  quantity  of  land  . 

Descriptions  as  to  courses  and  dis- 
tances must  yield  to  monu- 
ments   

Dividing  lines  between  tracts  of 
land,  courses,  calls  and  dis- 
tances, must  give  way  . 

Figures  and  words  used  in  deeds 
and  notes  to  describe  the  same 
thing,  and  are  contradictory  . 

For  land  without  the  name  of  the 
grantee,  when  acknowledged 
and  delivered 

Grants  must  name  a  grantor,  a 
•grantee,  and  a  thing  granted, 

Holder  of  notes  secured  by  a  deed 
of  trust,  becomes  purchaser  of 
property  at  trustee  sale  . 

under  a  quit-claim  deed  is 

not  entitled  to  protection,  as  a 
bona  fide  purchaser  .... 

Inadequacy  of  price  in  a  deed,  stand- 
ing alone,  is  not  enough  to  set 
it  aside 

Ineffectual  attempt  to  convey  a  part 
of  the  lands  described  .  .  . 

Lost  deed  may  be  made  good    . 

Not  so  certified  and  acknowledged 
as  to  be  competent  evidence, 

One  deeding  land  covenanting  he 


1568 
1593 

1576 
1590 
1571 

1587 
1586 
1588 

1574 
1564 
1578 
1567 
1565 

1566 
1566 

1595 
1575 

1569 

1570 
1567 

1588 


518 


INDEX   TO   CASES. 


PARAGRAPH. 

is   the  owner,  acquire  an  ad- 
verse title 1583 

Ordinarily  the  date  of  a  deed  (ad- 
mitted to  have  been  delivered) 
is  prima  facie  evidence  at  the 
time  of  delivery 1577 

Parties  to  notes  secured  by  deed  of 
trust  may  use  them  as  standing 
security  for  future  advances  .  1594 

Power  of  sale,  in  deed  given  to 
secure  a  debt,  whether  debtor 
or  third  person 1588 

Provision  in  deed  of  trust  by  which 

possession  remains  in  grantor,  1597 

Recitals  in  a  deed  as  to  considera- 
tion, are  not  conclusive  .  .  .  1579 

Recorded  deed  is  constructive  no- 
tice of  its  existence  and  con- 
tents   1572 

Recording  acts  of  Illinois  as  to  the 
rights  of  creditors  and  pur- 
chasers   1582 

Rule  in  Texas  for  construing  de- 
scriptions of  land  :  that  natural 
objects  control  artificial  ones,  1885 

Simple  receipt  not  under  seal  for 
"forty  dollars"  for  my  share 
of  the  "lot" 1584 

Subsequent  deeds  to  same  party 

does  not  confer  a  new  title .  .  1581 

Title  only  passes  after  the  delivery 

of  the  deed 1566 

Trust  deed  executed  to  secure  a 
debt,  to  be  avoided  on  payment 
of  debt 1591,  1592 

Where  there  is  inadequacy  of  price 
so  gross  that  common  judg- 
ment revolts 1569 

Words,  "  grant,  bargain  and  sell " 
in  a  deed,  are  a  covenant  of 
seisin 1596 

DEFENCE,  Page  219. 

Acceptance  of  the  fraud,  after  dis- 
covery of  a  conveyance .  .  .  1598 

Action  against  trustees  of  savings 

bank 1604 

Agreement  to  extend  time  on  notes 

when  they  were  discounted  .  1600 

Charge  of  usury,  in  action  to  fore- 
close a  mortgage 1601 

that  a  contract  was  not  in- 
cidental to  the  chartered  powers 
of  the  corporation 1599 

Discharge  in  bankruptcy  of  an  at- 
tachment debtor 1605 

Executory  contract  entered  into 
under  false  representation  of 
the  vendor 1598 

Fact  that  a  check  was  dishonored 


PARAGRAPH, 
when  transferred  or  payment 

was  delayed 160£ 

Purchasing  a   note   at  a  discount 

greater  than  lawful  interest    .     1606 

DEFINITIONS,  Page  220. 

"  Mariners  "  includes  a  purser  per- 
manently attached  to  a  vessel,  160T 

Theft  or  embezzlement  by  purser 

in  barratry 1607" 

Where  the  holder  of  a  note  parts 
with  the  possession  thereof  to 
the  maker 1608 

DEPOSITS,  Page  221. 

Authority  to  pay  out  the  dividends 
and  coupons  of  stocks  and 
bonds,  no  authority  to  sur- 
render them 1610' 

Bank  becomes  the  owner  of  money 

when  it  is  deposited  with  it ..    .     1622- 

of  deposit  has  no  power  to 

apply  a  money  deposit  in  its 
possession  to  the  payment  of 
the  maker  of  a  note  but  from 

the  depositor 161& 

receiving  deposits   under- 


takes to  pay   the   deposits   to 

the  holder 1619- 

Book   of  deposit   is   admissible  to 

show  the  amount  of  the  deposit,     1612 

Certificate  of  deposit,  payable  on 
return  thereof  properly  in- 
dorsed   1614 

Certified   check   and  certificate  of 

deposit  are  not  the  same  thing,     1614 

Debtor  to  an  insolvent  savings 
bank,  as  borrower,  who  is  also 
a  depositor 1615-1617 

Delivery  of  pass  book,  with  can- 
celled check,  written  up,  must 
examine  it  in  reasonable  time,  1624 

Deposit  in  bank  funds  in  excess  of 
amount  of  an  overdue  note  due 

to  the  bank 1609' 

receipt  was  not  a  negotiable 


instrument  passing  by  indorse- 
ment   •     •     •     1611 

Depository  is  not  always  liable  for 
any  depreciation  in  the  value 

of  bank  bills 1620- 

may  show  by  parol  evidence 


that  money  deposited  with  him 

was  certain  bills 1620 

Employing  clerk  in  bank,  by  a  de- 
positor, to  examine  his  written 
up  pass  book 1624 

Holder  of  check  having  demanded 
its  payment,  which  is  refused 
though  ample  funds  are  subject 
to  the  check  ....  ,  .  1619* 


INDEX  TO   CASES. 


519 


PARAGRAPH. 

Printed  conditions  of  deposit  and 

payment 1612 

Safe  deposit  company  contracted  to 
"  keep  a  constant  and  adequate 
guard  over  and  upon  safe  ".  .  1613 

Savings  banks  are  agent  for  the  de- 
positors and  their  losses  are 
their  losses  .......  1617 

Special  deposits  of  bonds  with  a  N. 
B.  for  safe  keeping  with  knowl- 
edge of  directors  ....  1621 

deposits  withdrawn  by  per- 
sons having  authority,  though 
bank  acted  without  knowledge 
of  that  fact 1610 

Where  authority  is  revoked  by  the 
death  of  the  person  empower- 
ing such  authority  ....  1611 

DEMAND,  Page  223. 

Corporation  warrants  drawn  upon 

treasurer 1628 

Demand  in  person  elsewhere  than 

at  the  place  designated  in  bill,  1627 

Due  bill  is  recoverable  upon  de- 
mand only 1627 

Municipal  warrants  drawn  upon  the 
treasurer,  must  be  presented 
before  action 1628 

Obligation  to  refund  money,  volun- 
tarily paid  by  mistake,  arises 
only  after  notification  of  the 
mistake •  1630 

Personal  demand  elsewhere  than  at 
the  place  designated  in  a  due 
bill 1627 

Right  of  action,  which  has  accrued 
by  reason  of  a  refusal  upon  de- 
mand   1627 

Second  demand  for  articles,  the 
delivery  of  which  was  refused 
at  first  demand 1627 

Terms  of  a  contract  between  vendor 
and  vendee,  the  purchase-price 
of  merchandise 1626 

To  enable  a  party  to  recover  in  an 
action  upon  a  due  bill  payable 
in  specific  property  ....  1627 

Vendee's  indebtedness  accrued  upon 

delivery  of  articles  ....  1626 

Where  a  demand  is  necessary,  etc.,     1631 

DEVISE,  Page  224. 

Testator  devising  all  real  estate, 
shall  be  construed  to  pass  all 
the  real  estate  which  he  was 
entitled  to  devise  at  time  of 
his  death 1632 

When  a  will  operates  upon  lands 
acquired  after  making  of  the 
will 1632 


PARAGRAPH. 

Will  must  declare,  in  express  terms, 
devises  or  in  other  terms  de- 
notes intention  to  devise  .  .  1632 

DISCOUNT,  Page  224. 

Antedating  a  note,  bearing  interest, 
as  of  date  when  the  money  was 
due 1639 

Bank  discounting  a  bill,  at  request 
of  the  party,  give  a  certificate 
of  deposit  payable  at  a  future 
day 1636 

Draft,  discounted  at  legal  interest, 
is  not  rendered  usurious  by 
reason  of  any  intended  lawful 
use  of  it  by  the  discounting 
owner 1633 

Drawer  presents  draft  to  payee  with 

acceptance  of  drawees  on  it  .  18 

May  by  express  stipulation  exempt 
himself  from  liability  for  neg- 
ligence   1242 

Note  discounted  at  rate  of  seven 

per  cent 1634 

Person  giving  his  creditor  a  note 
for  part  of  the  debt,  which  is 
discounted  at  more  than  legal 
interest 1637 

The  purchase  of  one's  note  at  a  dis- 
count is  not  usurious  ....  1638 

Three  days  of  grace  may  be  in- 
cluded when  taking  interest  in 
advance,  in  discounting  a  note,  1635 

Usury  more  than  legal  interest 
may  be  realized  by  the  dis- 
counter of  a  draft 1633 

DIVIDENDS  PLEDGED,  Page  224. 

Bank  has  the  right  to  hold  a  cash 

dividend 1640 

Refusal  to  pay  dividend  on  attached 

shares 1640 

EMBEZZLEMENT,  Page  225. 

Indorsement  of  a  negotiable  bill 
purports  to  pass  title  thereto 

from  the  indorser 1642 

to  one  person  for  the  benefit 


of  another 1643 

Must  be  made  to  appear  that  em- 
bezzled money  was  received 
by  virtue  of  the  office  of  the 

embezzler 1641 

Restrictive  indorsements  which 
negatives  the  presumption  of  a 

consideration 1643 

Sustainment  of  an  indictment,  under 

statute *    1641 


520 


INDEX   TO   CASES. 


PARAGRAPH. 
ENDORSEMENT,  Page  225.    % 

Accommodation  indorser  does  not 
guarantee  the  genuineness  of 
a  draft 1651 

indorser  of  notes  discounted 

by  a  bank  having  also  mort- 
gage as  security  for  notes    .     .     1658 

Action  by  the  bearer,  who  was  also 
the  maker,  against  an  in- 
dorser  1660 

Agreements  of  indorsee  with  a 
stranger  to  give  to  the  acceptor 
does  not  discharge  maker  .  .  1679 

Altered  note  discovered  before  it 
was  due  and  the  original 
amount  ascertained  ....  1694 

An  indorsement  to  one  person  for 

the  benefit  of  another    .     .     .     1643 

Being  necessary  for  the  payee  to 
indorse  the  note  to  make  it 
negotiable  paper 1684 

Bill  of  exchange  drawn  in  England 
and  payable  in  Spain.  Ac- 
ceptance refused 1661 

Certificate  or  affidavit  of  an  in- 
dorser setting  up  usury  as  a 
defence 1655 

Change  of  contract  on  which  in- 
dorsements are  to  be  made,  1704, 1705 

Consideration  for  a  transfer,  by  in- 
dorsement of  a  bill,  is  pre- 
sumed   1642 

Contracts  for  payment  of  money, 
except  instruments  governed 
by  commercial  law  ....  1667 

"  Defect  of  parties  plaintiff  "  to  a 
joint  and  several  note,  made  by 
three  defendants  to  order  of 
plaintiff 1695 

Delay  granted  to  the  maker  of  a 
note  by  the  holder,  without 
knowledge  of  indorser  reversed 
here 1670 

Devising  the  benefit  of  any  security 
held  by  the  creditor,  indorser 
must  first  pay  the  paper  .  1648-1649 

Draft  indorsed  "  Pay.  .  .     for  the 

benefit  of  her  son  Charlie  " .     .     1709 

Extension  of  time  given  to  maker 
of  a  note  upon  consideration 
of  interest  paid  in  advance 
without  assent  of  an  indorser,  1652 

Fraudulent  alteration  of  a  note 
made  subsequent  to  his  indorse- 
ment   1699 

Holder  of  a  note  can  claim  under 
the  equity  of  the  indorser,  out 
of  the  assigned  estate  .  .  .  1688 

of  a  note  having  previous 

knowledge   that   the    indorse- 
ment was  an  accommodation  .     1655 


PARAGRAPH. 

Indorsee  of  negotiable  bill  or  note, 
in  the  absence  of  proof  or  fraud 
is  presumed  to  be  owner  .  .  1677 

of    negotiable   note,    who 

takes  it  discharged  of  equities 
to  which  it  was  subject  in  the 
hands  of  payee 1697 

Indorsement  in  blank  of  notes  not 
negotiable  is  not  evidence  of  a 
written  promise  to  pay  .  .  .  1674 

made  with  an  understanding 

that  plaintiff's  name  should  be 

first  above 1660 

of  a  negotiable  bill  purports 

to  pass  title  thereto,  for  equiva- 
lent consideration  ....  1707 

of  a  negotiable  note  before 

maturity  by  the  payee  .     .     .     1644 

to  one  person  for  the  benefit 

of  another  affords  no  proof  of 

consideration 1708 

upon  note,  that  the  maker 


may  use  principal  after  ma- 
turity .  .  .  ...  .  1690,  1691 

Indorsements  of  a  restrictive  nature, 

do  not  pass  title 1643 

Indorser  cannot  maintain  suit 
against  the  indorser  or  assignor 
on  paper  not  commercial,  ex- 
ceeding fifty  dollars  ....  1667 

of  a  check  given  with  his 

knowledge   in   payment   of  a 
gambling  debt 1696 

of  a  note,  even  though  it  be 

an  accommodation  note,  is  not 

one 1682 

of  a   note   is   a  competent 

witness  to  prove  an  agreement 
in  writing  made  with  holder  at 

time  of  his  indorsement     .     .     1669 

of  note  after   its   maturity 

and  his  liability  becomes  fixed, 
joined   with    the   maker   in    a 
bond  for  further  time     .     .     .     1662 

on  note  receiving  mortgage 

as  security,  being  obliged  to 

pay  note 1656 

who  has  taken  sufficient  se- 


curity to  protect  himself  against 
possible  loss 1668 

Indorsers  cannot  be  made  liable 
for  any  act  beyond  that  which 
they  assumed  in  indorsing  note,  1706 

Interlineations  of  a  note  in  ink  of  a 
different  color,  made  after  in- 
dorsement    1699-1703 

Irregular  indorsement  on  a  note, 

does  not  relieve  liability  .  .  1689 

Joint  makers  of  a  note,  payable  at 
any  bank  in  Savannah,  one 


INDEX   TO    CASES. 


521 


PARAGRAPH. 

signing  on  face,  the  other  on 
the  back 1693 

Last  indorser  having  paid  the 
amount  of  a  judgment  on  the 
note,  with  interest  and  cost  .  1657 

Maker  of  a  note  furnishes  to  the 
second  indorser  money  to  pay 
the  note 1676 

Making  and  dating  a  note  at  a  par- 
ticular place  is  not  equivalent 
to  making  it  payable  there  .  1653 

No  notice  of  dishonor  by  non-ac- 
ceptance is  required  by  the 
laws  of  Spain 1661 

Note  indorsed  by  payee  in  blank, 
and  delivered  to  another,  who 
reassigns  it  to  the  payee  .  .  1671 

signed  by  maker,  indorsed 

in  blank,  first  by  payee   and 

then  by  third  person ....     1672 

sold     by     indorser    a    ne- 
gotiable note  who  added  to  his 
name,  "  without  recourse  "     .     1687 

Notice  of  a  protest  left  at  the  domi- 
cile of  one  who  has  been  ap- 
pointed temporarily  as  official 
to  act  away  from  his  family  . 
of  patent  sent  through  the 


mail 


1647 
1678 


Omission  to  notify  indorser  of  the 
non-payment  of  previous  in- 
stallments, as  they  fall  due  on  a 
note 1675 

Parol  evidence  contradicting  an  in- 
dorsement of  a  bill  before  ma- 
turity  1644 

Party  indorsed  negotiable  note  for 
maker's  accommodation,  who 
raised  the  face  value  by  alter- 
ing it  1694 

•  who  is  a  stranger  to  the  note 
indorses  the  name  before  de- 
livery  1680 

Payee  of  a  note  indorses  it  in  blank 

and  delivers  it  to  another  .  .  1671 

Payee's  name  appeared  on  back  of 
note  in  usual  position  of  first 
indorser 1689 

Payments  made  by  maker  of  a  note 
after  protest  for  non-payment, 
.  .  .  1664-1668 

Person  of  unsound  mind  who  signs 
as  surety  a  note  given  for  ante- 
cedent debt 1692 

Plaintiffs  indorsed  note  at  the  re- 
quest and  for  the  accommoda- 
tion of  D.,  which  had  been 
made  by  another  person  .  .  1706 

Promise  to  pay  a  note,  by  indorser, 
after  a  failure  to  protest  its  non- 
payment   1646 


PARAGRAPH. 

Promise  to  pay,  by  indorser,  after 
default  of  payment  by  the 
maker  ......  1654-1659 

Promissory  note  indorsed,  "  as- 
signed to "  A.,  made  in  the 
name  of  the  payee  ....  1645 

Recourse  against  indorsers  is  not 
lost  by  holder  of  a  note  accept- 
ing from  maker  another  note 
as  security 1650 

Restrictive  indorsement,  negativing 
the  presumption  of  a  consider- 
ation   1643 

Rights  of  an  indorser  of  a  note, 
whose  liability  is  fixed  by  pro- 
test when  maker  has  assigned,  1688 

Second  indorser  may  maintain  an 
action  against  the  first  for 
money  paid  on  note  ....  1684 

Stranger  indorsing  a  note  at  the 
time  it  is  made,  is  prima  facie 
liable  as  payee 1673 

Waiver  of  demand  and  notice  may 

be  made  by  parol 1666 

Waiving  of  protest  by  aiding  to  ob- 
tain an  extension  of  time  on  a 
protested  note 1663 

When  an  implied  warranty,  as  to 
the  validity  of  a  note  is  cre- 
ated   1687 

indorsee  of  bill  of  exchange 

in  sets  alleges  loss  in  transmis- 
sion of  acceptance  ....  1681 

Where  negotiation  of  the  altered 
note  to  plaintiffs  did  not  render 
defendant  liable  for  his  indorse- 
ment . 1702-1705 

EVIDENCE,  Page  235. 

Accidental  loss  or  disappearance  in 
a  bank  of  a  bill  sent  to  it  to 
collect 

Action  upon  a  note  executed  and 
indorsed  by  a  firm  without 
consideration 

Affidavit  of  assessors  as  to  obtain- 
ing requisite  consents  to  the 
issuing  of  bonds 

Bonds  purchased  with  another's 
money,  who  desired  them  to  be 
taken  in  name  of  buyer.  .  . 

Entries  in  the  defendant's  own 
books  offered  to  show  on  whose 
account  they  were  entered  .  . 

Evidence  admitted  to  establish 
ownership  of  bonds  sold  .  . 
that  is  a  repetition  of  decla- 


rations furnished  by  defendant, 
Forged  bond  sold  by  one  who  held 
it  as  security  for  a  loan  to  the 


1712 
1716 
1725 
1729 

1724 
1721 
1733 


owner 1730 


522 


INDEX   TO   CASES. 


PARAGRAPH. 

In  a  court  of  conscience  deliberate 
concealment  is  equivalent  to 
deliberate  falsehood  ....  1723 

Judicial  notice  in  one  State  of  the 

laws  of  another  State  .  .  .  1735 

Living  man  speaks  to  enforce  a 
dead  man's  contract  with  him- 
self    ....  1723 

Memorandum  book  having  altera- 
tions and  erasures  ....  1719 

Notes  given  to  pay  a  gambling 
debt  which  was  given  while 
intoxicated 1711 

Opinions  of  experts  as  to  subject  to 

peculiar  habits 1715 

Parol  evidence  to  explain  receipt    .     1718 

Party  to  an  action  calling  the  oppo- 
site party  as  a  witness  .  .  .  1728 

Plaintiff  being  allowed  to  testify, 

under  objection  and  exception,  1734 

Plaintiffs  books  of  original  entries 
offered  in  evidence  of  the 
items  and  amount  of  debt  .  .  1731 

President  and  manager  borrowed 
money  on  his  own  credit  for 
his  corporation 1717 

Right  of  partner  to  sign  the  firm 
name  to  a  contract  of  indem- 
nity of  third  person  ....  1722 

Statement,  either  oral  or  written, 
made  by  the  vendor  after  a 
sale 1713 

of   grantor  of  land   made 

after  he  has  conveyed  land     .     1714 

Title  of  assignee  of  a  non-negotia- 
ble note 1736 

To  acquire  the  force  of  law  a  cus- 
tom must  have  been  long  estab- 
lished.  1732 

Want  of  date  in  a  memorandum 

book  .  .  .  • 1720 

Where  entries  in  book  of  corpora- 
tion against  officers  .  .  1726,  1727 

evidence  of  the  details  of 

fraud  do  not  tend  to  confirm 
defendant's  version   ....     1710 


EXECUTION,  Page  238. 

Action  on  a  note  made  by  defendant 
W.,  and  indorsed  for  his  ac- 
commodation by  E 1737 

During  life  of  the  execution  debtor 
had  property  sufficient  to 
satisfy  it 1737 

Indorsed  as  an  accommodation  .     .     1737 

Sheriff  directed   not   to   act   upon 

execution 1737 

When  facts  constitute  no  defence  as 

to  liability  of  indorser    .     .     .     1737 


PARAGRAPH. 

EXEMPTIONS,  Page  238. 
Members   of    a    firm   severally    or 
jointly  are   entitled  to  its  as- 
sets,   exempted 173& 

FACTOR,  Page  239. 

Advances  made  or  liabilities  in- 
curred before  an  assent  to  the 
direction  of  the  owner  .  .  . 

Application  of  proceeds  from  a  sale 
of  goods  to  the  payment  of  the 
consignee's  note 

of  proceeds  of  the  sale  of 

goods  owned  by  one  who  has 
given  his  factors  a  note  . 

Banks  taking  pledges  from  factors, 
as  security  for  the  payment  of 
general  balance 

Exercise  of  diligence  is  required  of 
all 

Factor  cannot  bind  his  principal  by 
a  disposition  of  his  property 
unusually 

cannot     dispose     of     his 

principal   in   violation   of   his 
order  

-,  in  consideration  of  consign- 


ments made  to  him,  makes  ad- 
vances or  incurs  liabilities  .     . 

—  must  keep  books  in  which 
shall  be  entered  account  of  his 
principal 

—  selling  the  note  of  his  con- 
signee and  pledging  the  goods 
of  such   consignee     .... 

-,  under  the  common  law,  has 


no  right  to  pledge,  whether 
he  is  in  possession  of  goods  . 

False  representations  as  to  what  a 
patent-right  costs  ;  or  was  sold 
for,  or  as  to  offers  made  for  it, 

representations  to  induce  a 

person  to  enter  into  a  contract, 

Insolvent  firm  opening  a  bank  ac- 
count, in  name  of  firm,  with 
word  "  agent "  added  .  . 

Member  of  a  firm  making  state- 
ments to  a  mercantile  agency, 
he  knows  to  be  false  .  .  . 

Misrepresentations  made  by  one 
party  to  another  to  induce  him 
to  enter  into  a  contract  . 

Owner  has  a  general  right  to  im- 
pose terms  upon  his  factor  . 

Principal  of  a  factor  is  entitled  to 
correct  copy  of  the  entries  . 

Representations,  that  are  false  of 
opinion  of  any  kind  about 
property  sold  .  .  .  .  •. 

Risrht  of  owner  is  restricted  if  he 


1750> 


INDEX   TO   CASES. 


PARAGRAPH. 

has  drawn  against  consignment 
before   instructions  are  given,     1739 

Unauthorized  pledge  by  a  factor  of 
goods  owned  by  a  firm  of 
which  he  is  a  member  .  .  .  1742 

When  testimony  does  not  exhibit 
any  want  of  ordinary  care  on 
part  of  plaintiff 1750 

Where  an  action  of  deceit  will  not 

lie  on  false  representations     .     1750 

FAIR  DEALING,  Page  240. 

Fiduciary  relations  extend  to  all 
cases  wherein  confidence  is 
reposed,  investing  person  with 
an  advantage 1749 

Parol  evidence  that  a  deed  absolute 
on  its  face  was  in  fact  in- 
tended as  a  mortgage  .  .  .  1747 

Person  taking  securities  or  contracts 
enuring  to  his  benefit,  where 
fiduciary  relation  is  shown  to 
exist  .  .  .  .  .  .  .  1748,  1749 

Transaction  which  is  equally  ac- 
ceptable of  two  explanations, 
one  of  which  is  fraudulent  .  1747 

FINDING     OF    LAW    AND     FACT, 
Page  241. 

Fact  stated  in  finding  or  requested 
to  be  found  on  uncontroverted 
evidence 1752 

No  fact  can  be  considered  for  pur- 
pose of  reversing  judgment, 
etc 1752 

FIXTURES,  Page  241. 

All  within  a  mortgaged  building, 
that  is  intended  to  permanently 
increase  its  value  ....  1753 

Fixtures  erected  by  a  tenant  on  de- 
mised premises 1755 

Machines  which  are  incidental 
merely  to-  the  particular  busi- 
ness   1753 

Mortgage  of  a  building  covers  en- 
gine, etc 1753 

Removal  temporarily  of  a  part  of 

the  realty 1754 

Temporary  or  permanent  accession,     1754 

That  which  constitutes  a  fixture     .     1754 

FOREIGN  CORPORATIONS, 

Page  241. 
Indirect  prohibition  against  foreign 

corporations •     1756 

FORECLOSURE,  Page  242. 
Assuming   and  agreeing  to  pay  a 
mortgage  on  purchasing  prop- 
erty      1761 


PARAGRAPH. 

Bond  on  undivided  half  of  premises,  1763- 
Claim  by  lienor  for  surplus  money 

on  sale  of  land 1762 

Deficiency  judgment  sought  to  be 

avoided 1761 

Foreclosure    may    be    brought   in 

name  of  owner  of  the  note  .     .     1757 
Husband  and  wife  execute  a  mort- 
gage    1763- 

Implied  agreement  to  pay  high  rate 

of  interest 1760 

Lien  ceasing  at  the  expiration  of 

one  year 1762 

Plea  of  usury  in  foreclosure  suit .     .     1760' 
Possession   under   foreclosure   sale 
void  as  against  ower  of  equity 

of  redemption 1759 

Sale  without  notice  conveys  no  title,  1758 
Sixty  days'  notice  before  foreclosure,  1758 
When  not  standing  in  position  of 

mortgagee  or  assignee   .     .     .     1759' 

FORGERY,  Page  244. 

Absence  of  agreement  between  sus- 
picious person  and  the  forger,  1767 

Action  against  all  persons  connected 

with  forgery 1764 

Bank  must  pay  a  confirmed,  even 

when  it  is  a  forgery  ....  1768 

Equity  will  reform  a  contract  where 
there  is  a  mistake  on  one  side 
and  fraud  on  the  other  .  .  .  1766 

Forged  certificate  on  a  check  when 
confirmed  verbally  or  other- 
wise by  an  authorized  officer,  1768 

Money  obtained  on  pledge  of  forged 

bonds. 1767 

Person  receiving  a  part  of  the  pro- 
ceeds of  a  forgery  ....  1767 

When  several  persons  are  party  to 

a  forgery  . 1764 

Wife  who  merely  aids  husband  in 

the  commission  of  forgery,  1765,  1766 

FORMER  ADJUDICATION,  Page  244. 

Agreement  made  to  evade  statute 

against  usury 1770 

Final  judgment  upon  the  merits .     .     1769 

Judgment  is  not  a"  bar  to  the  de- 
fence of  usury  ......  1770 

that  is  admissible  in  a  sub- 
sequent action 1769 

Notes  given  to  plaintiff's  assignor, 

which  were  usurious  ....  1770 

FRAUDS,  Page  244. 

Accepting  a  warranty  under  false 

representations 1793 

Action  for  fraudulent  representa- 
tions should  be  supported  by 
proof 1777 


524 


INDEX  TO   CASES. 


PARAGRAPH. 

Agreement  between  parties  to  keep 

silent  as  to  a  mistake  .  .  .  1783 

Alleging  fraud  on  general  abstract 

terms 1805 

Assignee  attaching  a  chattel  mort- 
gage given  by  his  assignor  .  .  1788 

Assignment  executed  and  filed  on 

Sunday 1779 

of   property   by   a   debtor 

made  voluntarily  and  without 
consideration   ...'...     1785 

Balance  due  one  of  the  assignors 
from  an  insolvent  bank  was 
omitted 1778 

Burden  of  proof  is  on  the  complain- 
ant    ....  1772 

•Committing  a  legal  fraud  in  a  busi- 
ness transaction 1794 

•Contract  for  the  purchase  of  goods 
on  credit  with  intent,  not  to 
pay  for  them 1775 

•Credit  standing  to  credit  of  one  of 
the  assignors  upon  books  of  an- 
other bank 1779 

Defeating  a  sale  under  special 

charges 1776 

Division  of  copartnership  property 

between  partners 1795 

Effort  to  retake  entire  property, 

which  is  successful  in  part .  .  1781 

Equity  to  relief  on  the  ground  of 

fraud 1806 

Facts  constituting  the  defence  must 

be  set  out 1807 

Fraud  is  never  presumed  ....     1772 

must  be  clearly  and  conclu- 
sively established 1772 

Frauds  committed  on  both  sides .     „     1801 

Fraudulent  intent  on  part  of  both 

grantors  and  grantee ....  1804 

representations  must  be  in- 
jurious      1789 

Grantor   in  an  alleged  fraudulent 

conveyance 1803 

•Guarantee,  we  severally  agree  to 

become  responsible,  etc.,  when 

recommending  a  person .  .  .  1774 
If  the  act  is  in  effect  a  fraud  upon 

fhe  creditor 1786 

Illegal  acts  prejudicial  to  rights  of 

others 1786 

Infancy  is  a  bar  to  an  action  on  a 

case   of  false  and  fraudulent 

representations 1790 

Material  representations  by  a  vendor 

with  intent  to  deceive  .  .  .  1791 
Mere  fraudulent  representation  is 

not  actionable  by  itself  .  .  .  1777 
.Money  obtained  by  both  a  pretence 

and  promise 1802 


PARAGRAPH, 

Motives  of  parties  committing  a 

fraud  are  of  no  consequence,  1786 

No  legal  duty  rests  upon  judgment 

creditor  to  disclose  a  mistake,  1783 

Officials  of  corporations  are  person- 
ally responsible  for  all  their 
acts,  good  or  bad 1771 

On  trial  charging  forgery  of  bank 
notes  not  necessary  to  prove  the 
bank  was  duly  incorporated  .  1782 

Pretence  of  a  false  existing,  or  a 

past  fact  be  sufficient  .  .  .  1802 

Purchaser  in  good  faith,  having 
paid  a  part  of  the  purchase 
money 1776 

Receiving  property  knowing  it  to 

be  the  subject  of  a  trust .  .  .  1787 

Representations  as  to  quality  of 

goods 1793 

Right  of  action  on  a  charge  of  fraud 

accrues  at  the  time  of  discovery,  1784 

Sale  and  delivery  of  goods  was  in- 
duced by  fraud 1781 

Statute  of  limitations  begins  to  run 
against  an  action  on  a  charge 
of  fraud 1784 

Two  persons  engaged  together  with 

design  to  defraud 1800 

Vendor  authorizes  an  agent  to  make 
untrue  representations  to  the 
vendee 1792 

Want  of  an  object  in  a  guarantee 

agreement 1773,1774 

What  constitutes  a  disposition  of 
property  by  a  debtor  with  in- 
tent to  defraud  creditors  .  .  1780 

Whatever  fraud  creates  justice  will 

destroy 1771 

When  a  contract  is  not  fraudulent 
although  the  purchaser  knows 
himself  insolvent 1775 

Where  fraud  in  the  purchase  or  sale 

of  property  is  in  issue  .  .  .  1799 

fraud  is  committed  in  name 

of  a  corporation  .  .  „  .  .  1771 

GIFT,  Page  249. 

Absence  of  complete  delivery    .     .     1810 

Delivery  of  a  gift  to  donee  or  some 

one  for  him 1808 

Donation  of  instrument  securing 
payment  of  money,  reserving 
interest  thereon  during  life  of 
donor 1809 

Donor  retaining  instrument  under 

his  own  control 1810 

Essential  to  the  validity  of  a  gift    .     1810 

Gift  made  by  creating  a  joint  pos- 
session of  donor  and  donee  .  1811 

Intent  to  vest  title  in  the  donee      .     1812 


INDEX  TO   CASES. 


525 


PARAGRAPH. 

Possession  and  title  of  donor  must 

be  shown 1808 

Should  be  a  delivery  such  as  rests 
in  the  donee  control  and  do- 
minion   1812 

To  establish  a  valid  gift    .     .     .     .     1808 

Valid  gift  of  an  instrument  securing 

payment  of  money  ....  1809 

GUARANTY,  Page  249. 
Action  on  a  guarantee  alleged  to 
be   contained  in  a  letter  and 

telegram 

Agreement  that  is  a  guaranty  and 
not  an  original  promise . 

to    assume    at   maturity   a 


share  of  outstanding  notes  of  R. 

Amount  of  liability  is  limited,  and 
the  time  is  not  .... 

Assent  given  in  writing  and  orally 
to  a  renewal 

Assignor  of  order  for  money  agreed, 
if  not  paid  by  party,  to  pay  its 
face  value 

Buyer  stated  that  defendant  had 
offered  to  assist  him,  which  he 
indorsed  on  letter  .... 

Collateral  promise  to  pay  another's 
debt 

Concealment  which  will  avoid  a 
guaranty  must  be  a  fraudulent 
one 

Consideration  necessary  to  render 
a  special  guaranty  valid  .  . 

of  a  guarantee  need  not  be 

expressed  in  the  written  con- 
tract itself 

Continuing  guarantee  constituted  . 

Contract  of  guarantee  must  be 
strictly  construed 

Court  alone  determines  contracts  of 
guarantee 

Delay  of  foreclosing  until  fire  de- 
stroyed the  buildings  mort- 
gaged   

Due  diligence  in  exhausting  legal 
remedies  against  principal 
debtor  is  a  condition  precedent, 

Failure  to  serve  guarantor  with  no- 
tice of  non-payment  .... 

Giving  additional  time  for  payment 
on  paper  guaranteed  .  .  . 

Guarantee  payment  for  gocds  sold, 

taking  different  than  those 

provided  for  in  the  contract  . 

Guaranty  between  parties  to  form 
a  corporation,  etc 

of  accounts,  notes,  indorse- 
ments, etc 

of  a  firm  determined  on  the 


dissolution  of  the  firm 


1815 
1837 
1837 
1819 

1847 

1822 

1813 
1836 

1824 
1826 

1826 
1833 

1831 
1815 

1837 

1839 
1832 

1814 
1813 

1814 
1840 
1814 
1845 


PARAGRAPH. 

Guaranty  of  a  note  where  the  writ- 
ten promise  of  debtor  sets  for 
the,  etc 1825 

,  that  in  case  money  could 

not    be     collected  ....   he, 
guarantor  would  pay      .     .     .     1821 

Guardian's  security  is  only  amend- 
able after  settlement  of  guar- 
dian's account 1825- 

"  I  am  willing  to  go  his  security  for 
the  amount  of  twenty-five 
dollars" 1830- 

"  I  hereby  covenant  that,  in  case  of 
foreclosure  and  sale  ...  to 
pay  deficiency " 1838 

Indorser  refused  to  sign  a  note  as 

maker     ........     1817 

Insolvency  of  maker  of  a  note  does 

not  release  the  guarantor    .     .     1818- 

"  I    shall   hold    myself  responsible 

for  ($15,000)  that  amount,"  etc.     1831 

Legal   proceedings  are  needed  to 

fix  the  liability  of  a  guarantor,     1818- 

Note  in  hands  of  payee  on  back  the 
signature,  in  blank,  of  a  third 
person 1816 

Notice  not  necessary  when  the  un- 
dertaking is  absolute  .  1827,  1828 

Oral   guaranty  of    the  payment  of 

the  note  of  a  third  person  .     .     183& 

Orally  promised  to  pay  R.'s  note  at 

maturity,  if  R.  did  not    .     .     .     1836- 

Parol  evidence  admissible  to  show 
circumstance  under  which 

promise  was  given 1823- 

.  Person,  for  whose  benefit  the  guaran- 
ty is  given,  becomes  insolvent,     1828 

Pledge  of  property  to  a  bank  under 

the  guaranty  of  a  third  person,     1820" 

Promises  to  answer  for  the  debt  or 

default  of  a  third  person     .     .     1829 

Proof  of  demand  or  notice  of  non- 
payment is  required  to  hold  a 
guarantor 1818 

Request  of  payment  and  notice  of 

non-payment 1827 

Special  promise  to  answer  for  the 

debt  or  doings  of  another  .     .     1823 

Sufficient  consideration  required  to 

make  valid  a  guaranty   .     .     .     1827 

Waiving  any  material  condition  on 

which  a  guarantee  is  made      .     1814 

"  We  will  see  the  articles  paid  for  "     1829 

What  is  not  termed  a  continuing 

guaranty 1830 

Where  a  contract  should  be  con- 
strued as  a  continuing  guaranty,  1819 

a  guaranty  becomes  simply 

against  a  diversion  of  property,     1820 

consideration   of    guaranty 

is  stated  in  contract  ....     1826 


526 


INDEX   TO   CASES. 


PARAGRAPH. 
Where  fraudulent  in  fact  or  in  law,     1824 

. it  may  be  presumed  that  a 

person  indorsed  a  note  .     1816,  1817 
the  guarantor  undertook  to 


insure  the  payment  of  all  in- 
debtedness   1814 

"Words  "  I  guarantee  the  sum  five 
hundred  dollars'  value  in  glass 
shades,"  etc. 1835 

of  a  guaranty  will  be  read 

most  strongly  against  the  guar- 
antor    -  ...  1834 

responsible  for  the  payment 

of  any  sum  not  to  exceed 
$5,000,  which  W.  might  re- 
quire of  said  bank.  .  .  1841-1848 

— "  we  hereby  agree  to  guar- 
anty the  payment  to 

for  any  goods  .  .  to  $500  "  .  1833 

-^— —  which  were  held  not  to  con- 
stitute a  guarantee  ....  1815 

HOMESTEAD,  Page  257. 
Abandoning   homestead   temporar- 


Claim  for  homestead  exemption 

Deed  executed,  in  usual  form,  by 
husband  and  wife  which  con- 
tains no  waiver,  etc 

Homestead  law  does  not  vest  in  the 
ower  any  new  rights  of  prop- 
erty   

sold  to  supply  a  deficiency, 

existing  after  exhausting  other 

property 

on  property  exempt  un- 


der  the  homestead  act 
Mortgages  upon  homestead   of  no 
validity  unless  signed  by  hus- 
band and  wife 

Owner  of  homestead  absent  on 
business  with  his  family,  for 
two  years 


1854 
1853 


1852 

1858 

1850 
1851 

1850 
1854 


HUSBAND  AND  WIFE,  Page  257. 

Action  against  husband  and  wife 
for  necessaries  furnished  on 
credit  of  wife 1878 

All  property  is  held  subject  to  pay- 
ment of  the  debts  of  the  owner,  1858 

Before  assignment  of  dower,  wid- 
ow's right  is  a  mere  chose  in 
action 1863-1865 

Bill  paid  to  one  who  holds  it  in 

good  faith 928-931 

Charge  of  deception  or  mistake  is 
no  defence  for  the  signing  of  a 
deed  by  wife  who  did  not  read 
it  or  have  it  read 1855 

Contract  binding  separate  estate  of 

wife 1859 


PARAGRAPH. 

Conveyance  made  by  husband, 

through  third  person,  to  his  wife,  I860 

of  land  by  husband  to 

wife  previous  to  his  becom- 
ing solvent 1881 

to  husband  and  wife  makes 

them  tenants  by  the  entirety  .  1868 

Covenants  for  wife's  separate 

maintenance  ....  1871,  1872 

Creditor  unites  two  classes  of 

claims  in  one  suit 1876 

Deed,  in  ordinary  form,  of  husband 
and  wife,  which  contains  no 
waiver  of  the  homestead  .  .  1852 

Deposit  by  husband  in  name  of 

wife 1874 

Homestead  law  does  not  vest  in  the 
owner  any  new  rights  of  prop- 
erty . 1858 

Husband  and  wife  contracting  with 

each  other 1880 

— * becomes  absolute  of  wife's 

legacy,  and  may  dispose  of  it,  1857 

cannot   loan   money   to  his 


wife,  both  being  insolvent  . 

discharging  a  debt  to  his 

wife  rather  than  to  other  credi- 
tors   

—  having  reduced  to  his  posses- 
sion funds  belonging  to  his 


1858 


1877 


1856 


wife 

Income  derived  from  the  home- 
stead   1858 

Joint  bond  of  husband  and  wife  se- 
cured by  mortgage  on  wife's 
land 1869 

Land  deeded  to  husband  and  wife, 
thereby  becoming  seized  of  the 
entirety 1861,  1862 

Married  woman  executes  a  note 
and  at  the  same  time  a  paper 
declaring  her  intent  to  charge 
her  separate  estate,  etc.  .  .  .  1873 

Particular  phraseology  is  necessary 
to  create  a  separate  estate  for 
wife 1866 

Personal  acquisitions  of  a  wife  .     .     1870 

covenants  in  the  husband's 


mortgage 1882 

Property    conveyed    to    wife,    for 
which  payment  was  made  out 
of  husband's  property    .     .     .     1876 
Receipt  by  the  widow  of  one-third 

of  the  rent  of  real  estate     .     .     1864 
Right  of  the  wife  to  demand  read- 
ing of  papers  before   signing 

them 1855 

Rights  of  a  married  woman  .     .     .     1867 
Settlement   by   husband   upon   his 

wife 1875 

Wife  executing  mortgage  upon  the 


INDEX  TO   CASES. 


627 


PARAGRAPH. 

representations    of    her    hus- 
band       •     .     1855 

"Wife  mortgaging  her  estate  to  se- 
cure future  as  well  as  present 
debts  of  her  husband  .  .  .  1879 

not  liable  for  deficiencies  on 

foreclosure  of  a  mortgage  from 
husband  and  herself  ....     1883 

Wife's  convenant  in  her  husband's,     1882 

INDEMNITY,  Page  261. 
Indorser  to  a  specified  amount  of 

negotiable  paper 1884 

Mortgage   executed  on  real  estate  • 

to  indemnify  indorser  against 

loss 1884 

Security  for  indorsements  made  and 

to  be  made  in  the  future     .     .     1884 

INNOCENT    HOLDERS    AND  PUR- 
CHASERS, Page  261. 
Deed  to  be  valid  against  creditors 

and  purchasers 1885 

Deeds  to  purchasers  from  heirs  and 

devisees 1885 

Judgment  bonds  of  a  county  in  the 

hands  of  innocent  holders  for 

value 1886 

Unrecorded  deed  passes  title  of  the 

grantor  to  the  grantee    .     .     .     1885 
Warrants  issued  in  excess  of  the 

.     1886 


constitutional  limitation 


INSURANCE,  Page  261. 

Agreement  to  pay  commissions  on 

renewals 1893 

to  pay  commission  on  re- 
newals terminates  at  dissolu- 
tion of  company 1893 

Assignee  of  a  policy  of  life  insur- 
ance caused  death  of  assured  .  1896 

Controller  of  property  affecting  an 
insurance  thereon  in  his  own 
name 1889 

Declaring  policy  void  on  failure  to 

pay  annual  premium  .  .  .  1888 

Failure  to  pay  at  time  stipulated     .     1888 

Implied  warranty  in  every  marine 

insurance  of  seaworthiness,  1891, 1892 

In  absence  of  fraud,  accident  or 
mistake,  valuation  agreed 
upon 1889 

Law  will  not  imply  an  unwritten 
contract  which  cannot  be  made 
without  writing 1894 

Not  necessary  that  insurer  give  no- 
tice of  forfeiture  of  policy  .  .  1888 

Overvaluation's  eftect  upon  a  valued 

marine  policy 1889 

Policy  of  insurance  construed  most 

strongly  against  insurer .  .  .  1887 


PARAGRAPH. 
Sale  and  assignment  of  a  life  policy 

outstanding  and  valid  .  .  .  1890 
of  a  life  policy  as  a  device 

to  evade  law 1890 

To  whom  losses  must  be  paid  .  .  1889 
Waiver  of  breach  of  condition  as 

issuance  of  policy  of  insurance,     1895 

INTERLINEATIONS,  Page  262. 

Amendments  made  by  erasurers 

and  interlineations  ....  1897 

Disfigured  papers  should  be  stricken 

from  the  files 1897 

INTEREST,  Page  263. 

Abatement  of  war  interest  upon 
debts  contracted  prior  to  April 
1865 

Absence  of  a  written  agreement, 
only  legal  interest  can  be  re- 
covered   

of  evidence   as   to  current 


rate  of  interest  at  time  of  con- 
tract .  • 

Action  for  recovery  of  interest  after 
payment  of  the  principal  .  . 

Agreement  in  a  note  to  pay  eight 
per  cent 

to  pay  compound  interest, 

to  pay  greater  interest  than 

ten  per  cent.,  not  in  writing  . 

Allowance  for  failure  to  pay  at 
maturity  money  due  .... 

Authority  to  sell  notes  held  as  se- 
curity   

to  subscribe  payable  in 


municipal  bonds,  limited  to 
first  company  ...... 

Carries  stipulated  interest  to  date 
of  judgment 

Commercial  paper  discounted  by 
bank  at  excessive  rate  of  in- 
terest   

Compound  interest  in  special  cases, 

interest  is  not  usury  .     .     . 

interest  not  allowed   those 


holding,  simply  creditor  and 
debtor  relations 

Contract  clearly  expresses  the  in- 
terest to  be  paid 

for  interest  at  the  rate  of 

twelve  per  cent 

not  fixing  rate  of  interest  . 

that  interest  shall  be  com- 


pounded if  not  punctually 
paid 

Creditor's  right  to  interest  on  a 
debt  from  time  debt  was  pay- 
able   

Custom    regulates  rate  of  interest 


1911 
1958 

1919 
1957 

1901 
1920 

1904 
1917 
1954 

1930 
1948 


1962 
1920 
1936 


1945 
1908 

1921 
1903 

1936 
1931 


528 


INDEX   TO   CASES. 


PARAGRAPH. 

where  the  law  does  not  inter- 
fere          .     .     1933 

During  war,  creditor  entitled  to  war 

interest 1905 

Entry  of  judgment  mortgages  are 

merged  therein 1916 

Excessive  interest  provided  for  in 

writing 1901 

Fact    that   the    paper   is   business 

paper 1962 

First  payment  on  judgment  is  first 
applied  to  discharge  interest 
due 1956 

Guaranty  indorsed  upon  a  note,  the 

interest  specified  in  note     .     .     1925 

High  rate  of    interest  running  on 

note  after  law  was  changed     .     1909 

Interest  after  maturity  is  treated  as 
a  penalty,  not  covered  by  con- 
tract ...: 1901 

• after  maturity    recoverable 

by  way  of  damages    ....     1900 

interest  allowed  in  a  judg- 
ment in  one  state,  does  not  con- 
trol when  suit  is  brought  in 
this  state 1913 

allowed,  not  under  contract, 

but  by  way  of  damages  .     .     .     1932 

at    rate  of    six   per   cent., 

where  no  rate  has  been  agreed 
upon 1944 

in  mutual  accounts     .     .     .     1942 

.  is,  apparently  not  sanctioned 

by  Supreme   Court  on  claims 
against  government   ....     1941 

is   due   on    coupons,    after 

payment   of  them  is   unjustly 
neglected  or  refused  ....     1939 

is  not  allowable  in  action  for 

the  breach  of  a  contract      .     .     1914 

on   deposit   after  the  bank 

has  failed 1929 

on  judgment  or  debt  due  is 

computed   up  to  time  of  first 

payment 1956 

on  interest  is  not  allowed, 


as  a  mere  incident     ....     1947 

on  note  payable  on  demand,     1943 

rate  is  governed  not  by 

virtue  of  the  mortgages,  but  of 

the  judgment 1916 

rate  named  higher  than  the 

customary  rate  of  the  state  .  I960 

Judgment  to  bear  interest,  at  ten 
per  cent,  per  annum,  "  from 
date  "  until  paid 1898 

Loan  of  money  made  for  two  months 

at  two  per  cent,  a  month  .  .  1954 

Measure  of  damages  for  non-pay- 
ment of  debt  due 1917 

Note  at  ten  per  cent.,  etc.,  from  date 


PARAGRAPH. 

bears  six   per  cent,  after  ma- 
turity   1949,  1950 

Note  given  by  husband  and  wife, 
interest  on  which  was  increased 
by  husband 19101 

payable   on   demand,   with 

rate  of  interest  specified  there- 
in  1946 

One  to  whom  moriey  is  paid,  who 
receives  it  believing  that  it  is 
his  due 1955 

Only  legal  interest  will  be  allowed 
when  a  larger  interest  is  not 
stated  in  writing 1951 

Payment  of  excessive  in  money  or 

otherwise 1961,  1962 

Penalty  for  non-payment  of  princi- 
pal sum 1918 

Prohibiting   banks   charging   more 

than  seven  per  cent 1961 

Promise  to  pay  in  labor  and  material 
in  annual  payments,  interest 
due  thereon 1923 

to  pay  interest   due  on  the 

note  at  a  future  day,  etc.     .     .     1904 

to  pay  interest  on  interest   .     1947 

to  pay  on  demand,  with  in- 


terest   1926 

Providing  for  a  payment  of  inter- 
est prior  to  the  time  when 
principal  becomes  due  .  1959,  I960 

Rate  of  interest  stipulated  by  parties 

payable  after  maturity  .  .  .  1917 

Recovery  by  the  party  paying  ex- 
cessive interest  twice  the 
amount 1961 

Securities  bought  at  any  price 

parties  may  agree  upon  .  .  .  1935 

Settlement  upon  basis  of  old  rate, 
and  debtor  gives  new  notes  and 
mortgage  for  the  whole  .  .  1960 

Seven  per  cent,  interest  allowed  on 
mortgage  executed  before  rate 
of  interest  was  reduced  to 
six 1916 

Stated  rate  of  interest  is  recoverable 

up  to  date  of  verdict  .  .  .  1952 

Suing,  not  on  a  note,  but  on  the 
consideration  for  which  note 
was  given 1934,  1935- 

Suit  on  note  payable  on  demand 
without  previous  request  for 
payment 1942 

Sureties  liable  for  interest  as  dam- 
ages in  an  action  upon  an  of- 
ficial bond 1906 

Taking  care  that  principal  shall  not 
be  suffered  to  accumulate  by 
accruing  interest 1956 

Ten  per  cent,  interest  allowable, 

1907,1908 


INDEX  TO   CASES. 


529 


PARAGRAPH. 

Ten  per  cent,  until  maturity, 
and  two  per  cent,  per  month 
after  maturity 1953 

When  a  bequest  or  contract  is  si- 
lent as  to  interest  ....  1957 

— —  at  the  place  of  contract  rate 
of  interest  differs  from  place  of 
payment 1899 

interest  is  made  payable  an- 
nually upon  a  fixed  date     .     .     1924 
•  judgment  is  recovered  on  a 


note,  the  contract  is  merged  in 
judgment 1953 

Where  an  agreement  for  a  loan, 
nothing  is  said  as  to  rate  of  in- 
terest   1915 

Whether  a  negotiation  of  securities 

is  a  purchase  or  a  loan  .  1937,  1938 

"  With  interest  at  rate  of  sixteen 

per  cent,  per  annum  from  date  "  1927 

IRREGULARITY,  Page  269. 
Consenting    to    a    proceeding    he 
might  prevent  by  resisting  it, 
waives   all   exception  thereto,     1963 

JOINT  DEBTORS,  Page  270. 
Estate   of  one  jointly  liable    with 

others  dying 1964 

Imposing     an     obligation     where 

none    existed    before     .     .     .     1964 
Provision  for  the  preservation  of  con- 
tinued  liability  after  death     .     1964 
JUDGMENT,  Page  270. 

After  satisfaction  of  a  judgment  in 

favor  of  plaintiff 1966 

Debtor's  property  transferredthrough 

the  agency  of  a  valid  judgment,  1968 
Fraud  is  unable  to  defy  justice  .  .  1968 
Reaching  property,  alleged  to  have 

been  'transferred    to    defraud 

creditors, 1967 

Reversal  of  a  judgment  destroys  its 

efficacy 1965 

Where  statutes  of  limitations  are 

avoided  1966 

Validity  of  a  claim  upon  which 

judgment  has  been   rendered,     1967 

JUDICIAL  NOTICE,  Page  270. 
Court   will   take  judicial  notice  of 

the  nature   of  the   business  of 

mercantile  agencies  ....  1969 
General  course  of  business  in  a 

community 1970 

course  of  the    business    of 

banks 1970 

JUDICIAL  SALES,  Page  270. 
Judgment  of  foreclosure    directing 

sale  of  mortgaged  premises     .     1971 

34 


PARAGBAPH. 

Procedure  prescribing  the  duties  of 

an  outgoing  sheriff    ....     1971 

Property  advertised  for  a  sale  to 
take  place  after  expiration  of 
sheriff's  term 1972 

JUDGMENT,  Page  271  . 

Absence  of  fraud,  judgment  takes 
effect  only  on  actual  interest  of 
debtor 1973 

Deed  unrecorded  executed  pre- 
vious to  entry  of  a  judgment, 
1974,  1975 

Establishing  want  of  jurisdiction 
devolves  upon  the  party  so 
questioning 1976 

Legal  title  to  a  judgment  recovered 
by  surviving  member  of  a 
firm 1977 

Money  judgment  obtained   where       , 
service   was  made  by  publica- 
tion         1979,  1980 

Securities  pledged  to  a  banker  or 

broker 1978 

Title    of  a    grantee    of  judgment 

debtor 1974 

JURISDICTION,  Page  272. 

Decision  made  by  the  court  upon 
facts 

Entertaining  jurisdiction  outside 
statute  requirements  .... 

Establishing  want  of  jurisdiction  is 
upon  the  party  so  questioning 
it 

General  Term  of  Supreme  Court 
amending  its  record  .  .  . 

When  the  judgment  of  a  court  be- 
comes a  nullity 

LACHES,  Page  272. 
Case  where  the  indorser  was  dis- 
charged   

Delay  in  moving  for  a  less  time     . 
of  presentation  in  this  case 


1961 
1982 

1976 
1981 
1982 


dishonored  the  note 

Intent  of  parties  was  that  note  should 
be  presented  for  payment  with- 
in reasonable  time  .... 

Note  made  "  payable  on  demand 
after  date  " 

was    indorsed    and   trans- 


1984 
1983 

1984 


ferred  by  payee  on  the  day  of 
its  date 

Payment  demanded  and  refused     . 

Proceeding  to  vacate  an  assessment, 

LAPSE  OF  TIME,  Page  272. 
Lapse  of  time  does  not  bar  a  direct 

trust 

Trustee  and  cestui  que  trust    . 


1984 
1984 


1984 
1984 
1983 


1985 
1985 


530 


INDEX   TO   CASES. 


LEASE,  Page  272. 

PARAGRAPH. 

Covenant  to  pay  rent  does  not  cease 

to  be  obligatory 1986 

Lease    giving    lessee    a    right    or 

option 1988 

Lease  to  a  corporation  after  disso- 
lution   1986 

Lease  under  seal,  is  regarded  as 
made  upon  sufficient  consider- 
ation   1988 

Warranty  of  title  and  a  covenant 

for  quiet  enjoyment   ....     1987 

When  accepted  by  the  lessee      .     .     1988 

Words  "  grant "  and  "  devise  "  in  a 

lease 1987 

LIABILITIES  OF  BANKS,  Page  79. 
Are  liable,  in  the  same  way  as  indi- 
viduals, for  a  violation  of  usury 
laws 562,  563 

limited  in  their  powers,  551-553 

Bank  is  not  liable  for  an  act  of  its 

officer  which  has  never  been 
settled  by  the  courts  .  .  .  650 

Cannot  become  indorser  in  a  gen- 
eral sense 554 

Cashier  has  no  authority,  ordinarily, 
to  discharge  the  debtor  with- 
out payment 647 

is  generally  the  chief  execu- 
tive officer 646 

Cashier's  disregard  for  usury  laws 
unknown  to  the  bank  will  not 
vacate  charter 567,  568 

inherent    duty   to    certify 

checks 597,598 

inherent    duty   to   indorse 


paper 636,637 

Certified  check  may  be  held  by 

owner  as  a  depositor  .  .  603-606 

Contract  to  perform  the  duties  of 
an  office  is  implied  by  the  party 
accepting 550 

Contracts  signed  by  president  and 
cashier  not  duly  authorized  by 
directors 560,  561 

Customer  instructs  bank  to  pay  cer- 
tain drafts  drawn  by  A.,  same 
being  forgeries  ....  656, 657 

Debt  paid  to  receiving  instead  of 

the  paying  teller 658 

Deposit  of  bonds  as  security  for  a 

loan 591,592 

Depositor  instructs  his  bank  to  pay 

checks  drawn  by  his  agent,  652,  653 

Directors  are  the  only  persons  au- 
thorized to  make  a  contract 
binding,  with  a  few  exceptions,  559 

Directors'  violation  of  State  laws 
or  provisions  of  charter  subjects 
bank  to  forfeiture  of  charter,  569-573 


PARAGRAPH. 

Doubt  of  liability  extends  only  to 
cases  when  a  deposit  is  left 
for  sole  convenience  of  deposi- 
tor   590 

Fails  after  certifying  check  and  be- 
fore it  is  presented  for  pay- 
ment . 609-624 

Gold  or  foreign  coin  be  deposited,  581-592 

Holds  a  note  made  by  one  of  its 
depositors  which  it  neglects  to 
pay  at  maturity  ....  654,  655 

Liabilities   for   special  deposits  of 

every  kind 579-581 

Liability  for  negligence  or  want  of 

skill  on  part  of  its  officer    .     .       650 

May  assume  a  liability,  which  is 
nearly  akin  to  the  principle  of 
certification 660,  661 

make  itself  liable  as  having 

accepted    by   detaining   it   an 
unusual  time 607,  608 

make  itself  liable  by  certify- 
ing it  to  "  be  good  "  if  done  by 

a  proper  officer 593 

plead  any  legal  defences  it 


may  have  to  an  action  brought 
against   it 575 

Not  always  liable  for  misrepresenta- 
tions fraudulently  made  by  a 
cashier 648,649 

Note  certified  as  "  good "  if  done 

by  a  proper  officer    .     .     .     625-627 

Officer  takes  a  check  in  payment  of 
a  note  left  with  it  for  collec- 
tion   651 

Officers  exceeding  their  authority,  555-557 

Officials  acting  without  authority    .       635 

Paying  a  check  of  a  cashier  of  an- 
other bank  which  has  a  fund 
to  its  credit 638,  639 

teller  or  other  officer  may 

be  authorized  by  directors  to     ' 
certify 598-602 

President  or  other  officer  certifies 

his  own  check 595 

Profits  are  derived  mostly  from  its 

deposits 577-579 

Responsible  for  a  check  which 
the  payee  accepted  at  the  in- 
stance of  the  bank  .  .  .  628, 629 

Through  mistake  gives  its  customer 
credit  for  an  amount  of  a  note 
left  for  collection 659 

Usually,  cashier  cannot  make  a  con- 
tract that  will  bind  the 
bank .  641-645 

Whatever  is  said  or  done  by  an 
officer  of  a  bank  in  the  dis- 
charge of  his  proper  duties,  631,  632 


INDEX  TO   CASES. 


531 


RIGHTS,    DUTIES    AND     LIABILI- 
TIES OF  BANKS,  Page  94. 

PARAGRAPH. 

Absence  of  authority  implies  prohi- 
bition    .......     783, 784 

Acceptance  of  an  accommodation 
draft,  drawn  and  dated  in  one 
state,  on  a  resident  of  an- 
other    .  .  965-967 

of  drafts  by  officials  of  the 

government 923 

Acceptor  of  a  draft  paying  it  before 

maturity 949 

Acceptor's  name  written  across  the 
stamps  before  the  bill  was 
drawn 916 

Action  for  a  conversion  of  a  draft, 
or  to  recover  moneys  paid  by 
mistake 930-932 

.  in  S.  C.  against  N.  B.  may 
be  brought  where  plaintiff  re- 
sides   741 

.  upon  a  bill  of  exchange  may 
be  defeated  for  want  of  con- 
sideration   918,  919 

Act  of  congress  in  regard  to 
usury  supersedes  those  of  a 
state 694,695 

Acts  of  a  bank  after  insolvency   .     .       703 

Adjusting  and  compromising  con- 
tested claims 781,  782 

Administrator's  liability  for  assess- 
ments    732-736 

Agent,  as  indorser,  is  a  mere 

designatio  persona  ....  913 

Agent's  admissions  made  after  the 
fact,  and  entirely  unconnected 
with  his  act  of  agency  .  .  .  885 

Agreement  to  exchange  U.  S.  for 
registered  bonds,  neglecting 
so  to  do,  the  bonds  were 
stolen 901 

Allowances  on  settlement  of  ac- 
counts of  insolvent  savings 
bank .  862 

AH  stockholders  of  N.  B.  are  liable 
for  assessments  for  debts  of  the 
bank  782 

Amount  on  policies  a  set-off  to  de- 
posits   797,  798 

Apparent  authority  only  operates 
by  way  of  estoppel  and  takes 
place  of  real  authority  .  .  .  751 

Assessment  of  bank  shares  is  not 
subject  to  a  deduction  for  debts 
of  the  owner 750 

of  bank  stock  for  taxation,       863 

of  taxes   on    bank   shares 

should     be     at     their     actual 
value 725 

Assets  of  an  insolvent  bank  under 

legislative  action      ....       764 


PARAGRAPH. 

Attachment,  injunction  or  exe- 
cution against  a  National 
Bank 834-836 

issued  against  an  insolvent 

N.  B.  is  invalid 740 

Authority  for  claiming  from  state 

on  N.  B 730 

of    agent    to   receive  pay- 
ment by  acceptance  of  a  bill,       920 

Bank  bills  are  a  good  tender     .     .       787 

charter  is  not  taxable  as  a 

franchise  ...'...     755,  756 

involved.    Course  of  action 

when 865,  866 

may  sue  to  recover  tax  il- 
legally assessed 874 

stock  not  affected  by  con- 


fiscation acts '     790 

Banking  corporation  cannot  sub- 
scribe for  the  stock  of  a  rail- 
way   738 

Bill  accepted  in  the  words  "  Ac- 
cepted, payable  after  my  ad- 
vances are  paid  "  .  .  .  .  905 

drawn  in  one  state  upon  a 

party  in  another 922 

of  exchange  drawn  for  the 

accommodation  of  the  payees 
and  accepted  by  drawees  for 
same  purpose      ....     945,  946 

of  exchange  locked  up  for 

two  years 938 

of  exchange  must  be  pay- 
able   at    all   events,   not    de- 
pendent   on  any  contingency, 

requesting  amount   named 


948 
941 


to  be  paid  to  himself  or  order, 

Bonds  deposited  with  bank  with 

knowledge  of  directors  .  .  .  714 

Building  erected  by  a  bank  on 
leased  land  is  real  property 
for  purposes  of  taxation  .  .  845 

Cannot  lend  money  on  its  own 

stock 698, 699 

Cashier  cannot  bind  a  bank  as  an 

accommodation  indorser  .  .  746 

Cashier's  authority  to  borrow 

money 743 

Charter  powers  in  extension      .     .       754 

Check  drawer  undertakes  that  the 
drawee  will  be  found  at  the 
place  described  .  .  .  924 

is  a  bill  of  exchange  within 

the  statute 811 

on  one  bank  paid  to  an- 
other in  a  distant  town  .  .  .  876 

Collections  must  be  attended 

promptly 786 

Commodation  bill  accept  at  request 
of  third  party,  who  agrees  to 
share  any  loss 957 


532 


INDEX  TO   CASES. 


PARAGRAPH. 

Comptroller's  declaration  of  individ- 
ual liability  of  stockholders  is 
conclusive 727, 728 

Conditional  acceptance  of  a  bill  of 
exchange  makes  a  new  con- 
tract between  payee  and  ac- 
ceptor   905 

Corporation,  like  a  natural  person, 
may  appear  voluntarily  by  at- 
torney  753 

Court  of  one  State  will  not  enforce 
a  penalty  imposed  by  another 
State 693 

Currency  required  in  the  payment 

of  a  bill  of  exchange  .  .  .  939 

Damages  on  draft  drawn  and  in- 
dorsed in  England  payable 
abroad  being  dishonored  .  .  955 

.  on  non-payment  of  foreign 

bill  of  exchange 940 

Dealing  in  stocks  not  expressly  pro- 
hibited   783,  784 

— —  with  a  corporation  in  mat- 
ters not  falling  within  the  pur- 
view of  its  powers  .  .  .  890-892 

Demand  for  payment  on  third  day 
of  grace,  with  protest  and 
notification 910 

Deposit  in  name  of  wife  ....       8*10 

Depositors'  claims  in  a  N.  B.  at  sus- 
pension are,  when  proved  as 
judgments 726 

Difference  between  acceptances  of 
the  purchaser  and  those  of  a 
third  person 921 

Directors  violate  or  knowingly  per- 
mit any  of  its  officers,  agents 
or  servants  to  violate  .  .  .  704 

Discounting  a  note  before  its 
maturity  is  not  chargeable  with 
knowledge  of  illegality .  .  .  877 

Discount  in  violation  of  statutes     .       805 

••— "  signifies  the  act  of  buying 

bill  of  exchange  or  note  for 

less  than  their  face  ....  873 

Dissolution  of  a  partnership  with  an 
individual  banker,  without 
notice  of  dissolution  .  .  894-898 

Draft  drawn  and  dated  in  one  State 

and  payable  in  another  .  .  .  965 

i  drawn  in  favor  of  payee  on 
a  certain  fund  arising  from 
sale  of  property 953 

.  drawn  for  Jthe  price  of 

goods  sold  and  delivered  is 
equivalent  to  demand  .  .  .  964 

.  in  payment  of  a  note  is 

only  so  when  the  draft  is  paid,  837,  838 

Drafts  must  not  be  made  payable 
out  of  a  particular  fund,  or 
performance  of  any  act  .  .  948 


PARAGRAPH, 

Drafts  on  a  company  signed  by  its 

agent 944 

Drawer  of  check  bound  to  pay 

draft  at  the  place  named  .  .  924 

Drawn  by  one  depositor  and 
credited  to  another  of  the  same 
bank  is  discredited  ....  1101 

Duress  is  not  chargeable  against  a 
person  who  insists  on  his  legal 
rights 912". 

Embezzlements  by  bank  officials,  706,  707 

Excess  of  limit  of  a  loan  no  bar     .       800 

Expiration  of  charter  is  not  a  pre- 

ventative  of  reasonable  action,  765 

Extent  of  N.  B.  from  State  legisla- 
tion   717,718 

Evidence  that  the  holder  of  a  bill 

of  exchange  had  notice  .  .  917" 

Failure  to  stamp  foreign  bill  and  a 

delay  of  a  year 947 

Fixing  particular  date  for  annual 

elections 7801 

Forged  check,  paid  by  the  bank     .       806 

Forgeries  not  discovered  until  too 

late 806 

Former  adjudication  as  to  one  not 

a  party  to  the  action  .  .  .  752- 

Freight  charges  based  upon  gross 
weight  as  distinguished  from 
net  weight 911 

General  indorsement  of  bills  is 
prima  facie  evidence  of  prop- 
erty in  indorsee 904- 

Guarantees  of  a  certificaton  of  a 

check 742: 

Habitually  receiving  special  de- 
posits to  be  kept  for  mere  ac- 
commodation   761 

Half  of  a  bank  note  sent  in  pay- 
ment other  half  to  follow  .  .  902 

Have  no  lien  on  stock  of  stock- 
holders for  unpaid  balances,  700-702" 

Having  paid  a  check  on  forged  in- 
dorsement    817-820 

Ignorance  of  directors  as  to  trans- 
actions in  their  bank  affairs  is 
not  a  defence  ....  839,  840' 

Illegal  cancellation  of  an  official 

bond 745 

"  Individual  banker,"  prohibited  by 
statutes,  does  not  apply  to 
private  banker  ....  841-844 

Indorsement  by  a  member  of  a  firm 
in  its  name  unknown  to  his 
partners 821 

on  note  by  makers    .     .     .       821 

Indorser  of  a  bill  right  to  notice 
whether  the  drawer  have  or 
have  no  effects 942 

of  a  promissory  note  is  a 

principal  debtor 968 


INDEX   TO   CASES. 


533 


PARAGRAPH. 

Intention  to  assign  a  fund  in  the 
hands  of  another  upon  suffi- 
cient consideration  .  .  .  906-908 

Interest  allowed  by  laws  of  the 
State  in  which  N.  B.  is  located 
may  be  taken 690 

•*'  I  take  notice  of  the  above  "  writ- 
ten and  signed  on  an  un- 
negotiable  bill  of  exchange,  814,  815 

Jurisdiction  over  an  action  ex  con- 
tractu  brought  by  a  citizen  of 
the  State  against  N.  B.  of  an- 
other State 827-829 

Knowledge  acquired,  not  as  an 
officer  of  a  bank  though  he  is 
a  director  thereof  .... 
-,  individually,  of  an  officer 


of  a  bank 

Liability  of  a  bank  upon  a  certificate 
of  deposit  commences  only  on 
demand  of  payment  .  .  . 

— — —  of  an  acceptor  who  tears 
the  bill  in  two  parts  with  the 
intention  of  destroying  it  .  . 

— ^—  of  bank  stockholders  being 
secondary  and  the  bank 
primary  debtor 

— ^—  of  a  partner  is  not  changed 
by  the  fact  that  the  depositor 
did  not  know  he  was  a  part- 
ner   

of  stockholder  arises  .     .     . 

— —  of  stockholders  as  to  assess- 


821 
821 


898 


958 


865 


895 
799 


ments  for  debts  of  a  failed  N. 

B 712 

Limitation  of  tax  rate  on  bank 
stock  does  not  apply  to  an 
overvaluation 747 

Married  woman  living  in  one  State 
and  owning  a  bank  of  another 
State 809 

Money  collected  by  one  bank  for 
another  placed  to  its  ordinary 
funds 766 

held  in  trust  for  the  benefit 

of  the  owners  thereof  .     .     801-804 

for  a  check  placed  on  the 

counter     and     payee     having 
taken  it  up,  payment   is  pre- 
vented        875 

paid  to  a  cashier  for  use  of 

the  bank  misapplied  by  him  .  867 

National  Banking  Act  is  an  enu- 
meration of  the  general  and  not 
the  incidental  powers  .  .  847,  848 

National  bank  has  corporate  power 
to  exchange  registered  for  non- 
registered  bonds 880 

N.  B.  has  no  power  to  loan  its 

credit  .  7C2 


PARAGRAPH. 
N.  B.  is  liable  to  be  sued  in  any 

court 711 

is    not   responsible   for   its 

notes   stolen   before   they   are 
signed 778 

may  take  rate  of   interest 

allowed  by  the  State  to  State 
banks  of  issue 777 

stock  may  be   taxed   irre- 


spective of  fact  that  the  capital 

is  invested  in  U.  S.  bonds  .     .       748 

No  defence  to  set  up  that  debt  ex- 
ceeded one-tenth  of  bank's 
capital 737 

Note  indorsed  for  accommodation 

of  the  makers 761 

purchased  at  less  than  its 

face 822-825 

Notes  exchanged  to  pay  others  dis- 
counted at  a  greater  rate  of 
interest 829-836 

Not  permitted  to  offer  or  receive  U. 
S.  or  N.  B.  notes  as  security  on 
loans 710 

No  value  or  consideration  for  ac- 
ceptance   952 

Omission     to     exact    security    for 

moneys  lent 719 

Oral  promise  to  answer  for  the  debt 

of  another 963 

Order  directing  payee  to  pay  on  ac- 
count "  as  per  contract  "  .  .  959 

Paper  drawn  to  a  person  by  name, 
with  addijion  of  cashier,  nam- 
ing no  bank 767 

Payer  of  forged  checks  must  lose 

the  sum  paid  thereon     .     .     .       807 

Payment  made  by  the  acceptance 

of  a  bill 921 

of  dividends  determined  by 


the  laws  of  the  place  where 

bank  is  located 808 

Payments,  conditional  and  inchoate, 

are  revocable 902 

Penalties  imposed  by  Banking  Act 

upon  N.  B.  for  taking  usury  .  691 

Possession  of  a  draft  is  presumptive 

evidence  of  ownership  .  .  .  950 

Preference  of  savings  bank  as  cred- 
itors of  an  insolvent  bank  over 
other  depositors 879 

President  allowing  debtor  bank 
to  withdraw  his  deposit  with- 
out paying  his  debt  ....  759 

of  a  bank  loaned  money  of 

the   bank   to   an  irresponsible 
party 881-885 

of  a  bank  must  act  within 

the  scope  of  his  authority  .     .       872 

of  a  N.  B.  paying  for  stock 


534 


INDEX   TO   CASES. 


PARAGRAPH. 

in  his  bank  with  his  notes,  etc., 
871,872 

Prior  equities  of  antecendent  par- 
ties to  negotiable  paper  .  .  936 

Private   banker   taxed   on  average 

deposits 870 

Prohibited  from  taking  real  estate 
mortgage,  except  for  prior  in- 
debtedness   713 

Promise  to  accept  a  future  bill  of 
exchange  for  money  to  be  ad- 
vanced thereon 956 

Proof  of  notice  of  dissolution  in 
newspaper,  in  the  place  where 
the  bank  was  located  .  .  .  897 

. that  a  person  is  clerk  for 

another  does  not  establish  his 

right  to  receive  payments  .     .       887 

Provision  in  articles  of  association 
and  in  by-laws  given  lien  on 
its  stock 775,776 

Purchase,  hold  and  convey  real  es- 
tate    .  .  779 

Receiving  special  deposits  is  simply 
incidental  to  the  business  of 
banking 846 

Redemption  of  notes  stolen  before 

they  are  signed 778 

Relations  of  a  bank  with  its  cashier 
are  analogous  to  those  of  prin- 
cipal and  agent 739 

Remittitur  by  the  bank  of  a  judg- 
ment on  a  bill  against  A.  .  .  909 

Responsibility  for  loans  for  "  legiti- 
mate business  purposes "  .  .  796 

for  payment  of  a  specified 

sum 791-793 

Retention  of  a  bill  without  a   de- 
mand for  a  return     .     .     .     961-963 
Rights    and    powers   of    National 

Banks 789 

of  parties   in   a   draft   are 

governed   by  the   laws  where 
payable      925-927 

Right  to  "  reexchange "  is  the 

measure  of  damages  .  .  .  909 

Rulings  of  the  Federal  courts  .    784,  785 

Saving's  institutions  (of  Kansas) 

as  purchasers  of  notes  .  .  868,  869 

Sending  a  collection  to  a  distant 
bank  does  not  constitute  that 
bank  its  agent 838 

Shares  are  to  be  divided  into  $100 

each 687 

in  N.  B.  taxable  by  states  .       816 

"  Special  Deposits  "  refused  on  de- 
mand    .  857-861 

indorsement  shows  no  con- 
sideration had  been  paid  .  903,  904 

State  bank  cannot  enforce  against 


PARAGRAPH, 

an  executory  contract  not  au- 
thorized by  its  charter    .     .     .       749> 

State  Constitution  (Kansas),  ap- 
plies to  banks  of  issue  .  .  .  864 

Statute  of  limitation  begins  to  run 
on  deposits  from  time  of  refusal 
to  pay 820" 

Stock  certificates  and  stock  ledger 
of  a  bank,  shows  who  are 
stockholders 720- 

held  in  pledge,  remaining 

on     the     books    in    name    of 
pledgee 878 

Stockholders  respectfully  bound  for 

all  the  debts 788 

Stockholder's  right  to  sue  a  national 

bank 866 

Stock  of  N.  B.  may  be  taxed  at  an 

amount  above  their  par  value,  969- 

Stolen  bonds  from  a  bank  when 

they  were  on  deposit  .  .  .  888 

Subscribing  for  or  in  accepting  stock 
of  a  bank,  is  an  assent  of  be- 
coming security 723 

Suits  against  N.  B.  may  be  brought 
in  U.  S.  or  state  courts,  ex- 
cept  708,709 

Term  "  special  deposits  "  applies 

to 849-861 

Title  deeds  given  to  secure  a  debt 
which  having  been  paid,  can- 
not be  held  for  new  debt  .  .  757 

Transfer,  fraudulently,  of  trust  funds 
to  the  individual  account  of 
the  trustee 9001 

Trustees  appointing  an  agent  to 

collect 794,  795 

Universal  practice  of  banks  .     .     .       815 

Usury  laws  of  states  not  applicable 

to  national  banks 692 

Verbal  promise  by  a  bank  there- 
for to  pay  a  check  ....  812 

Violation  proceedings  cannot  be 
taken  in  state  courts  against 
N.  B 70S 

Voluntary  liquidation  does  not  pre- 
vent bank  suing  and  being 
sued 760 

Warranty  or  representation  on  the 
part  of  the  vendor  of  a  bill  in 
hands  of  indorser  .  .  .  933-935 

When  a  bank  may  take  mortgages 

to  secure  anticipated  liabilities,  715 

acceptances   are  governed 

by   the   laws  of  the   state  in 
which  they  are  drawn   .     .     .       943- 

a  check  is  not  the  contract 

between  the  parties     .     .     813, 814 

a  corporation  is  sufficiently 

organized 893- 


INDEX  TO   CASES. 


535 


PARAGRAPH. 

When  a  receiver  may  be  ap- 
pointed    696, 697 

authority   of    a  cashier  to 

compromise   a   claim    will   be 
presumed 729 

drawers  and  acceptors  of  a 

draft  are  not  co-securities  .  945,  S46 

Where  a  bank  charter  is  forfeited, 
on  quo  warranto.  Surplus  as- 
sets belong  to  stockholders,  770,  771 

a  bill  of  exchange  is  paid  to 

one  who  holds  it  in  good 

faith 928,929 

— — —  a  presentment  of  a  bill  is  not 

recognized 772—774 

drafts  are  accepted  in  ad- 
vance      937 

N.  B.  may  be  sued   ...       769 

. no  rate  of  interest  is  fixed 

by  state  laws  seven  per  cent. 

may  be  taken  in  advance   .     .       690 

parol  evidence  is  inadmis- 
sible  as   to   contract  between 
drawer  and  drawee  of  a  draft,       954 

proceeds  of  consignments 

must   be  held  to  pay  accept- 
ances  - 937 

the  party  who  should  accept 

a  bill  destroys  or  refuses  to  re- 
turn it  .  ,     960,  961 


LIENS,  Page  275. 

Cannot  transfer  lien  to  a  stranger 
without  also  assigning  the  debt, 

Creditor  may  release  a  lien  on 
claiming  an  interest  or  a  junior 
lien 

Equitable  lien  on  real  estate  is 
waived  where  vendor  takes  a 
note  of  third  person  .... 

Exchanging  one  form  of  security 
for  another  for  the  same  debt, 

Execution  creditor  takes  with  notice 
property 

Holder  of  a  debt  secured  by  a  lien, 

Judgment  docketed,  but  not  prop- 
erly indexed  

entered  on  an  assessment 


note , 


Lien  a  right  to  have  satisfaction  for 
a  debt  and  of  property  . 

— —  is  neither  property  nor  a 
debt 

on  personal  property  secured 

by  a  levy 

which  has  been  prevented 


by  his  own  act 
Policy  of  law  is  against  upholding 

secret  liens 

Promise    of    owner,   accepted    by 

workman  cuts  off  the  lien  . 


1990 
1990 

1993 
1991 

1998 
1990 

1995 
1992 
1989 
1989 
1997 
1996 
1999 
1994 


PARAGRAPH. 
What  is  not  a  judgment  that  can  be 

enforced  against  any  property 

of  insurer 1992 

When  no  other  lien  can  intervene,  1991 
Where  a  reservation  of  a  lien  is  of 

no  effect 1997 

Workman  under,  restrained  from 

filing  his  claim 1994 

LIMITATIONS  OF  ACTIONS, 

Page  274. 

Action  based  upon  a  charge  of  fraudy  2000 
Judgment  other  than  for  a  sum  of 

money .     .     2000 

Limiting  time  for  commencing  ac- 
tion to  procure  a  judgment .  .  2000 

LOANS,  Page  274. 

Account  current  rendered  exhibit- 
ing details 2001 

Entries  in  the  books,  where  con- 
tinued from  year  to  year  .  .  2001 

Loan  by  a  non-trader  to  a  trader    .     2001 

Record  account  current  was  accom- 
panied by  a  letter  ....  2001 

MARKET  PRICE,  Page  275. 

Market  of  a  marketable  commodity,    2002 
Price  determined  by  offers  to  sell, 
made  by  dealers  in  the  ordin- 
ary course  of  business  .     .     .     2002 
Statements  of  dealers  in  answer  to 

question  as  to  price  ....     2002 

MARRIED  WOMEN,  Page  275. 

Although  she  carries  on  no  business 
and  has  no  separate  estate  loses 
real  estate  .....  2023-2027 

Answer  of  a  married  woman  to  an 
action  by  the  indorser  of  a 
note,  etc 2004 

Any  mistake  or  misunderstanding 
between  parties  at  a  judicial 
sale 2019 

At  common  law,  the  note  of  a  mar- 
ried woman  is  void  ....  2008 

Case  of  a  purchase  by  a  wife  during 

coverture 2010 

Clerical  error  in  entering  a  consent 

decree 2017 

Consent  of  parties  to  a  correction  of 

clerical  errors ......  2017 

Constitution  and  statute  of  this  State 

(Florida)  make  no  change  .  .  2008 

Contract  implied  by  law,  or  inferred 

from  circumstances  ....  2024 

Deposit  paid,  by  order  of  court, 
to  a  judgment  creditor  of  her 
husband 2027 

Holder  of  a  mortgage  given  by  a 


536 


INDEX   TO   CASES. 


PARAGRAPH. 

wife   with   her  husband's   au- 
thority ........     2064 

Husband  may,  acting  in  his  own 

right,  convey  to  his  wife     .     .     2011 

Implied  authority  from  a  husband,     2003 

Indorsement  by  a  married  woman 
of  a  note  for  husband's  accom- 
modation   2004 

Married  woman  cannot  bind  her- 
self by  contract 2005 

May  give  a  mortgage  on  her 
property  to  secure  payment  by 
her  husband 2013 

purchase  property  on  credit 

as  if  she  was  feme  sole  .     .     .     2021 

Mistake   in   facts    will   always    be 

remedied  by  the  courts     .     .     2016 

Money  lent  to  a  married  woman     .     2009 

paid  under  a  mutual  mis- 
take of  law 2018 

Note  given  by  married  woman  and 
her  husband  for  property 
purchased  by  her  as  sole 
trader 2006 

taken  in  name  of  wife  in- 
dorsed by  her  and  gave  in 
payment  of  her  husband's 


debt 


2003 


Paying  for  a  purchase  with  her  own 

separate  funds 2010 

Personal  judgment  against  married 

woman 2008 

Plaintiff,  in  his  own  name,  de- 
posited a  certain  sum  with 
defendant 2027 

Presumption  is  that  husband  fur- 
nished the  money  paid  away 
by  his  wife 2010 

Promise  made  by  a  married  woman 
to  pay  for  groceries  out  of  her 
own  earnings 2005 

Receipt  of  a  woman  before  taking 

out  letters  of  administration  .  2020 

Sale  of  mortgage,  by  married  wo- 
man, of  her  separate  property, 
for  payment  of  husband's 
debts 2007 

Separate  estate  is  presumed,  in 
absence  of  proof  to  the  con- 
trary   2012 

Transfer  of  property,  by  husband 
to  wife  in  payment  of  money 
loaned  him  by  her  ....  2014 

"Wife  left  in  charge  of  farm  and  to 

manage  the  same  ....  2003 

may  do  with  her  own  prop- 
erty as  she  will 2011 

rnay  make  conveyances  di- 
rectly to  her  husband  .  .  .  2011 

separated  in  property  is 

liable  for  household  expenses,  2064 


PARAGRAPH. 

Who  contracts  a  debt  as  agent  for 

her  husband 2022 

is  legal  owner  of  personality 

may  sue  at  law  one  who  takes 

to  his  own  use 2028 

MARSHALLING  SECURITIES, 
Page  278. 

Collateral  security  for  money  ad- 
vanced upon  mortgages 

Creditor  having  two  funds  out  of 
which  he  can  satisfy  his  claim, 

Term  "  heirs "  refers  to  relatives 
by  blood,  and  does  not  include 
widows 

When  securities  should  not  be  mar- 
shalled   

Where  one  creditor  has  securities 
upon  two  funds,  another, 
having  a  security  on  one  of 
them 

Word  "  heirs "  when  applied  to 
the  succession  of  personal  es- 
tate, means  next  of  kin  . 


MISTAKES,  Page  279. 

Avoiding  an  agreement  because  of 
a  mistake,  it  must  be  of  fact, 
not  of  law 

Burden  of  proof  rests  upon  party 
resisting  repayment  .... 

Claiming  damages  for  a  conversion 
of  property 

Consummation  of  the  transaction, 
in  ignorance  of  the  mistake 

Court  will  not  reform  an  instru- 
ment on  the  ground  alone,  that 
one  of  the  parties  acted  fraud- 
ulently   

Estoppel  applies,  not  on  the  ground 
of  wilful  fraud  in  making  the 
representation 

Holder,  under  an  honest  mistake 
reported  that  bill  was  taken 
up .  . 

Ignorance  of  a  fact  extrinsic  and 
not  essential  to  a  contract  . 

Inadvertent  mistake,  made  by  a 
bankrupt  in  stating  the  amount 
of  a  debt  

Indorser  upon  receiving  notice  of 
protest,  sent  money  to  take  up 
the  bill 

Jurisdiction  of  a  court  of  record  to 
set  aside  or  reform  a  con- 
tract   

Lands  omitted  in  a  deed  by  mis- 
take  

Making  a  misstatement  in  good 
faith 


2029 
2029 

2031 
2030 

2030 
2031 

2037 
2032 
2048 
2041 

2046 
2034 

2034 
2041 

2038 
2034 

2041 
2039 
2034 


INDEX  TO   CASES. 


537 


PARAGRAPH. 

Mistake  as  to  legal  rights  is  not  a 

ground  for  equitable  relief  .  .  2040 

is  a  sufficient  ground  upon 

which  to  decree  the  reform  of 

a  deed 2033 

to  warrant  a  court  of  equity 

in  reforming  a  written  con- 
tract   2049 

which  is  not  calculated  to 

mislead 2044 

Money  paid  under  a  mistake  of  a 

material  fact 2032 

Mutual  mistake  must  be  proved 
and  that  it  was  mutual  must  be 
clear 2046 

Parol  evidence  admitted  to  show 

mistake 2042 

Party  misnamed  in  the  body  of  a 
lease  signs  it  in  his  true 
name 2036 

receiving  money  paid  him 

in  a  mistake,  returning  it  .  .  2032 

Presumption  that  a  customer's  note, 
sent  to  bank  for  collection  was 
not  paid 2043 

Security  on  a  note  supposed  the 

maker  was  a  partnership  .  .  2045 

Settling  the  wrong  contract  with 

plaintiffs 2035 

When  the  holder  of  a  bill  could 

not  recover  from  the  indorser,  2034 

MONEY  COLLECTED  BY  AN  OFFI- 
CER, Page  281. 

Cannot  apply  money  collected  un- 
der one  execution  to  payment 
of  other  collections  ....  2050 

Money   collected  by  an  officer  on 

legal  process 2050 

Where  both  executions  are  in  the 
officer's  hands  for  collection  at 
same  time 2050 

While  money  remains  in  officer's 

hands 2050 

MONEY     HAD     AND     RECEIVED, 
Page  281. 

Attorney  received  money  belonging 
to  plaintiff,  which  he  wrong- 
fully appropriated  ....  2051 

Maintaining  an  action  for  money 

received 2051 

Money    having    been   received    in 

good  faith 2052 

Obtaining  money  on  a  forged  mort- 
gage   2052 

When     defendant     has     received 

money  belonging  to  plaintiff    .     2051 

fraud   and   wrong   caused 

plaintiff  to  pay  money  to 
others  .  ,  2051 


MORTGAGES,  Page  281. 

PARAGRAPH. 

Action   on  a  warranty  without  re- 
turn of  property  by  purchaser,     2168 


to    recover    upon    certain 


notes,  and  to  foreclose  a  real 
estate  mortgage 2105 

Actual  notice  is  as  effectual  as  the 

constructive  notice  of  record    .     2093 

Administrator  borrowing  money 
upon  a  mortgage  of  real  estate 
of  the  decedent 2140 

Advances  of  money  by  one  person 
to  another  with  which  to  pur- 
chase title  to  land  ....  2063 

Advice  to  transfer  real  estate  under 
a  promise  to  reconvey  it  to  the 
conveyor 2097 

Agreement  of  partners  to  continue 
business  of  firm  after  death  of 
either  partner      .     .     .     2161-2167 
that  a  mortgage,  and  real 


estate  upon  which  it  was 
secured,  should  be  held  for 
antecedent  debt 2124 

Assignee  of  mortgage  given  to 

secure  payment  of  a  note  .  .  2134 

of  mortgage  is  not  affected  by 

a  collateral  agreement  between 
mortgagor  and  mortgagee  .  .  2102 

of  mortgage  takes  it  subject 

to  all  defences 2082 

Assignment  duly  recorded,  by  holder 
of  mortgage  containing  power 
of  attorney  of  sale  ....  2084 

of  mortgage  accepted  upon 

faith  of  statement  by  mort- 
gagor   2145 

of  mortgage,  to  insurance 

department,  as  a  part  of  the 
deposit 2144 

— — —  under  seal  of  a  bond  and 


mortgage,  which  contained 
guaranty  of  payment  .  .  .  2147 

Assumption  of  a  mortgage  con- 
tained in  a  deed 2080 

Bank  declining  a  discount,  should 

return  the  note  offered -it,  2094,  2095 

Bill  of  sale  conveying  personal 
property  to  creditor  as  security, 
property  remaining  in  posses- 
sion of  debtor  2120 

of  sale  of  a  vessel,  like  a  deed 

absolute  on  its  face  ....  2059 

Bona  fide  assignee  of  mortgage 

rights  against  original  owner,  2088 

holders  of  paper  given  for 

valid  reasons 2157 

Bondholder  obtaining  judgment  on 
one  bond  and  levying  on  fix- 
tures ,  2068 


538 


INDEX   TO   CASES. 


PARAGRAPH. 

Case  of  a  latent  equity  arising  out         . 
of  an  implied  trust    ....     2096 

Clause   in  a  mortgage,  fixing  fees 

of  the  creditor's  attorney     .     .     2106 

"  Continuing  security  and  indem- 
nity "  mortgages;  to  the  mortga- 
gees   2160 

Contract  for  the  purchase,  by  one 
party  and  the  sale  by  the  other 
of  certain  premises  ....  2152 

Conveyance  made,  not  as  a  sale,  but 
as  a  security,  is  simply  a  mort- 
gage   2097 

to  a  trustee,  absolute  on  face,    2074 

Debtor  executed  a  conveyance  to 
secure  an  indebtedness,  pro- 
viding for  a  reconveyance  .  .  2103 

Deed  of  married  woman  without 
certificate  of  privy  acknowledg- 
ment   2130 

Defence  to  an  action  of  ejectment,     2072 

Descriptive  signs  satisfactorily  ascer- 
tained in  a  conveyance  of  land, 
which  designates  the  thing 
meant  to  be  granted  .  .  .  2114 

Difference  between  covenant  to 
secure  against  liability  and  one 
to  indemnify  against  damages,  2165 

Entitling  mortgagor  to  maintain  an 
action  to  extinguish  the  lien  of 
his  mortgage  ......  2148 

Equitable  mortgage  may  arise  from 
non-payment  of  purchase 
money 2061 

Executed  a  mortgage  as  security  for 

a  note 2053 

First  of  two  mortgages,  on  same 

land  being  foreclosed     .     .     .     2117 

Fixtures  on  premises  are  held  under 
mortgage  on  land  containing 
them 2111 

Grantee  executed,  at  same  time  and 
place,  two  mortgages  on  same 
lands 2067 

of    a   mortgagor    of    land 

which  was  created  by  fraud  on 

part  of  mortgagee     ....     2083 

of  the  remainder  of  a  mort- 
gage   2079 

Holder  of  a  mortgage,  given  by  a 
wife  with  her  husband's  au- 
thority . 2064 

Holding  by  assignment,  duly  re- 
corded, a  mortgage  and  note 
indorsed  in  blank  ....  2085 

Indorsed  a  note  secured  by  mort- 
gage to  C.  and  assigned  the 
mortgage  to  D 2053 

Instrument  of  conveyance  that  on 
its  face  purports  to  secure  a 
payment 2065 


PARAGRAPH. 

Instrument  purporting  to  mortgage 
a  crop,  the  seed  of  which  has 
not  yet  been  sown  ....  2159 

Joint  note  payable  in  one  year.  On 
the  face  of  the  note  each  signer 
appeared  as  principal  .  .  .  2098 

Lessee  of  land  became  the  owner 
of  an  undivided  portion  of  it, 
executed  a  mortgage  of  this 
portion 2090 

Lessee's  right  of  possession  against 

all  persons  except  the  mortgagee,  20901 

Lien  or  mortgage,  securing  a  nego- 
tiable note 2069 

May  make  a  valid  mortgage  for 
payment  of  money  without  de- 
scribing writing  given  for  the 
debt 2107 

Mere  inadequacy  of  price  is  not 
sufficient  to  invalidate  sale  of 
real  estate 2125 

Misdescription  in  a  mortgage,  made 
by  a  scrivener,  when  the  prem- 
ises may  be  identified  .  .  .  2129 

Mortgage  containing  a  promise  to 
pay  the  note,  to  secure  which 
mortgage  is  given  ....  2113 

,  duly  recorded,  given  to  se- 
cure future  advances  or  indorse- 
ments   2071 

executed   by   a   tenant   in 

common 2138 

given  for  preexisting  debt,     2112 

is  not  barred  until  the  note 

is 2092 

on  lands,  with  chattel  mort- 
gage covering  fixtures  thereon,  2068 

of  real  estate,  with  power 

of  sale 2142 

,  primarily  without  any  con-. 

sideration,  given  to  secure  cer- 
tain notes  in  hands  of  future 

holder 2132 

registered  first,  does  not  ac- 


quire   priority   over   purchase 

money 2067 

Mortgaged  land,  on   which  was  a 
grist  mill,  in  which  there  were 

certain  fixtures 2111 

Mortgagee  after  condition  broken,     2054 
making  an  absolute  assign- 
ment of  a  mortgage  to  her  agent,     2057 

of  chattels,  in  absence  of 

agreement   in   mortgage,  pur- 
chases the  property  at  mortgage 

sale 2141 

of  real  estate,  before  fore- 
closure of  his  lien,  sues  one  for 
removing  boiler  from  premises,     2110 

• who  transfers  part  of  a  mort- 
gage debt  to  another      .     .     .     2133 


INDEX  TO   CASES. 


539 


PARAGRAPH. 

Mortgagees  expressly  authorized  to 

sell  for  cash  or  on  credit  .  .  2155 

Mortgagee's  power  to  sell  only  con- 
tinues as  long  as  the  debt  ex- 
ists   2058 

sale  relates  back  to  the  date 

of  the  mortgage 2066 

Mortgagor  afterward  conveyed 

equity  of  redemption  .  .  .  2125 

. of  real  estate  has  right  to 

possession  of  mortgaged  prop- 
erty, etc 2142 

Must  clearly  indicate  the  creation 
of  a  lien,  and  specify  the  debt 
secured  thereby 2119 

Necessity  of  registration,  in  order 

to  give  a  priority  of  title  .  .  2109 

No  resistance  to  taking  possession 

of  premises  mortgaged  .  .  .  2055 

Note  secured  by  a  mortgage,  the 
latter  passes  as  an  incident  to 
the  note 2069 

Older  equities  against  mortgage 
given  to  secure  a  preexisting 
debt 2139 

Omission  of  surnames  of  some  of 
the  parties  mentioned  in  a 
mortgage 2112 

Omitting  to  name  State,  county  and 
township  in  describing  premises 
in  a  mortgage 2114 

Parol  evidence  in  regard  to  a  se- 
curity for  a  debt 2059 

evidence  to  show  that  no 

debt  existed 2056 

Party  coming  into  a  court  of  equity 

for  relief  must  himself  do  equity,  2149 

Payment  for  materials  in  part  cash 

and  part  in  a  mortgage  .  .  2094 

to  the  day  of  sale  is  allowed 

to  mortgagor,  or  the  owner  of 

the  equity  of  redemption  .  .  2128 

Personal  obligation  on  part  of 

grantee  to  pay  mortgage  .  .  2073 

Personal  property  mortgagor  has  no 
such  interest  therein  as  can  be 
levied  upon  and  sold  .  .  .  2126 

Possession  of  real  estate  by  a  mort- 
gagee, acquired  by  force  or 
fraud 2072 

Provision  in  mortgage  allowing 
mortgagor  shall  have  posses- 
sion, without  paying  rent  .  .  2131 

Purchased  an  estate  with  plaintiff's 
money  and  had  it  conveyed  to 
his  wife 2115 

Purchaser  from  the  mortgagor  may 

recover  the  land  mortgaged  .  2104 

Purchaser  of  a  portion  of  mortgaged 

premises 2101 

Purchaser    of   non-negotiable    de- 


PARAGRAPH. 

mands  from  others  than  orig- 
inal owner  of  them  ....     2100- 

Purchaser  of  portion  of  mortgaged 
premises  agrees  to  pay,  as  part 
of  the  purchase  money,  the 
mortgage '  2076-207£ 

Purpose  indicated  is  to  divert  the 
grantor  of  title,  and  to  vest  title 
in  grantee 2119* 

Purpose  of  enabling  B.  to  raise 
money  for  him,  made  a  prom- 
issory note  and  mortgage  .  .  2087 

Real  estate  mortgages  are  only  per- 
sonal property,  assessable  for 
taxation  where  found  .  .  .  2158 

Recorded  title  takes  precedent  over 
an  unrecorded  deed  of  same 
land 2109 

Redemption  of  property  which  has 

been  sold  under  a  mortgage    .     2156 

Registry  of  a  judgment  against  a 
party  operates  as  a  legal  mort- 
gage   2137 

Relief  from  payment  of  interest 
and  costs  after  tender  to  pay 
mortgage 2150 

Right  of  entry  against  heirs  of  the 

mortgagor 2056 

Rights  of  mortgagor  of  personal 
property,  after  condition  brok- 
en    •  2121 

Sale  by  a  mortgagee  has  same  effect 

as  a  sale  by  mortgaging  debtor,     2066 

Sale  of  one  of  a  series  of  notes,  se- 
cured by  mortgage  ....  2060 

Securing  future  advances  or  indorse- 
ments by  mortgage  ....  2070 

Senior  mortgagee  foreclosure  with- 
out making  junior  mortgagee 
a  party  to  his  action ....  2062 

Several  notes  secured  by  mortgage, 
the  notes  having  been  passed 
to  several  holders  ....  2118 

Stipulation  in  a  mortgage  for  pay- 
ment of  reasonable  attorney 
fees 2135 

Subsequent    revival   of    note    and 

mortgage  by  a  part  payment   .     2092 

Suit  in  equity  for  redeeming  unoc- 
cupied and  uninclosed  city  lots 
from  a  mortgage  .  ...  2146 

Taking   possesaon    of   mortgaged 

premises     .     .     .     .     .     2054,  2055 
possession    of    mortgaged 


premises  in  absence  of  owner,     2055 
Tender  of  amount  due  upon  a  mort- 
gage after  condition  broken    .     2127 

of  payment  of  a  mortgage 

and  a  refusal  to  accept  .     .     .     2148 
of  the  amount  of  a  debt  af- 


540 


INDEX   TO   CASES. 


PARAGRAPH. 

ter   the   law  day  has   passed, 
unaccepted      ....     2122, 2123 

Third  mortgage  of  land,  which  is 
subject  to  a  fourth  mortgage, 
sells 2086 

person  notice  of  a  mortgage 

conveyed   to   him   by  the   in- 
scription of  the  mortgage  .     .     2099 

Unauthorized  cancellation  of  a 
mortgage  by  the  recorder  of 
mortgages 2089-2116 

Uncertainty  or  vagueness  of  a  mort- 
gage   2075 

Unrecorded     mortgage     valid     as 

against  heirs  of  mortgagor       .     2143 

Value  of  a  note  at  the  time  of  trial 
and  not  the  value  at  the  time 
of  the  assignment  ....  2153 

When  a  buyer  must  "  abide  by  the 
case  of  the  person  from  whom 
he  buys  " 2100 

mortgaged  property  is  sold 

under  a  power 2154 

-  mortgagee  disposes  of  prop- 
erty after  tender  of  payment 
has  been  made 2123 

Whether  acknowledged  or  not, 
a  mortgage  is  binding  between 
the  parties 2136 

NEGLIGENCE,  Page  298. 

Acceptor  of  a  deed  conveying  land 
is  bound  to  examine  it  care- 
fully  2174 

Acknowledging  and  signing  a  deed 

supposing  it  was  a  lease  .  .  2169 

Assignee  of  shares  of  stock,  who 
leaves  certificate  with  assign- 
ments recorded,  with  the  as- 
signor   2173 

Employment  of  a  common  carrier,     2175 

First  one  of  two  innocent  parties 
suffering  a  loss,  must  fall  upon 
first  one  in  fault 2172 

If  one  of  two  persons  must  suffer 

a  loss 2169 

Mere  preponderance  of  negligence 

on  part  of  defendant  .  .  .  2170 

Negligence  of  the  plaintiff  must  be 
slight  when  compared  with 
that  of  the  defendant  .  .  .  2170 

Note  lost  by  one  party  and  found 
by  another  who  passes  it  to 
an  innocent  holder  ....  2172 

Receiver  of  N.  B.  may  sue  director 
for  loss  of  bank  caused  by 
their  negligence  .  .  .  2176-2180 

Recovery  of  damages  for  an  injury 
depends  nearly  as  much  upon 
the  care  of  the  plaintiff  as  upon 
defendant  .  ,  2171 


PARAGRAPH. 

Stockholder  may  sue  directors  for 
neglect  and  inattention  to 
their  duties 2177 

Whatever  will  validate  mortgage 
between  parties  will  validate 
it  as  to  third  parties  .  .  .  2093 

When  a  debt  is  extinguished,  which 

is  secured  by  a  mortgage  .  .  2058 

a  mortgagee  has,  upon  de- 
mand, rendered  a  true  account 
of  the  amount  due  upon  mort- 
gage   2108 

Where  note  and  mortgage  are  once 

barred 2092 

party  cannot,  by  any  proper 

inquiry,  have  learned  of  the 
latent  equity 2096 

Whether  advances  or  indorsements 

were  optional  or  obligatory  .  2071 

Wife,  separated  in  property,  is  lia- 
ble for  her  proportion  of  the 
household  expenses  ....  2064 

Withholding  mortgage  from  record,    2091 

NOTARY  PUBLIC,  Page  299. 

Affidavit  executed  before  notary 
public  is  not  an  affidavit  in 
Texas 2181 

Any  one  injured  by  a  notary  public 
as  has  a  right  of  action  against 
his  sureties 2182 

Statutes  do  not  confeV  on  notaries 
public  a  general  power  to  ad- 
minister oaths 2181 

Sureties  on  official  bond  of  a  notary 
public  are  liable  for  any  loss  or 
damage  caused  by  his  affix- 
ing his  notarial  paraph  to  note 
he  knew  to  be  forged  .  .  .  2182 

NON-RESIDENT,  Page  299. 

Foreign  creditor  rightfully  in  court 
of  this  state  (New  York)  pur- 
suing a  remedy,  has  the  same 
priority  of  lien  as  a  citizen  .  2183 

NOTICE,  Page  300. 

Knowledge  of  the  circumstances 

regarding  the  issue  of  notes  .  2184 

Notice  to  cashier  of  a  bank  lending 
on  trust  stocks,  that  they  are 
held  in  trust 2185 

Releasing  a  surety,  under  the 

statutes 2186 

Satisfactory  proof  must  be  made, 
or  notice  in  writing,  etc.,  to 
release  a  surety 2186 

Where  a  weekly  publication  of  a 

notice  is  required  ...  .2187 


INDEX  TO   CASES. 


541 


PARAGRAPH. 
Notice  that  an  offer  is  accepted  is 

required 2188 

OVERDUE  COUPONS,  Page  301. 

Bona  fide  purchaser  of  bonds  from 
an  agent  may  retain  them  as  his 
own '  .  .  .  2190 

Bonds  purchased  from  one  who 
holds  them  merely  as  security 
for  a  loan 2189 

.  sold  by  the  lender  for  a 
larger  amount  than  he  loaned 
upon  them 2190 

Corporate  bonds  pledge  as  security 

for  a  loan 2189 

Honest  purchaser  from  an  agent 

can  give  good  title  to  another,  2191 

Question  of  good  faith  may  be  de- 
termined by  the  amount  paid 
for  the  bonds 2189 

Retaining  bonds  as  indemnity  for 

the  amount  paid  for  them  .  .  2191 

OWELTY,  Page  301. 

When  required  to  equalize  partition 
between  two  tenants  in  com- 
mon    .  .  2192 

Where  money  should  be  paid  to 
mortgagee  and  credited  on 
mortgage  note 2192 

PAROL  EVIDENCE,  Page  302. 
Parol  evidence  as  to  written  con- 
tracts    .  ,     2193 


PARTNERSHIP,  Page  302. 

Acceptance  by  one  partner  for  sepa- 
rate debt,  not  in  firm  name 

Accounts  between  partners  .     .     . 

Action  at  law  maintained  by  one 
partner  against  another,  etc.  . 

— —  brought  by  one  member 
of  a  firm  to  have  an  account- 


ing. 


Acts  done  within  the  scope  of  the 
partnership  4 

After  dissolution  of  firm,  members 
thereof  cannot  create  obliga- 
tions, etc 

— —  dissolution  of  firm,  one 
partner  has  no  implied  author- 
ity, etc 

Agreement  continuing  partnership 
after  death  of  a  member  .  . 

Assignment  of  firm's  assets  for 
benefit  of  creditors  .... 

Attachment  of  firm  property  for  a 
firm  debt  prevails  over  a  prior 
one  for  a  separate  debt  .  .  . 


2276 
2241 

2232 


2257 
2199 

2199 

2206 
2260 
2249 

2238 


PARAGRAPH. 

Community  of  profit  and  loss  is  the 

test  of  a  partnership      .     .     .     2236 

Contracts  made  by  one  partner  on 

behalf  of  the  firm     ....     2227 

Creditor  of  a  firm  is  at  liberty  to 
prove  the  fact  of  the  partner- 
ship, etc 2282 

of  former  firm  sues  its  indi- 
vidual members 2255 

Creditors  of  a  corporation  selected 
three  of  their  members,  who 
were  elected  directors  of  com- 
pany   226& 

Debtor,  being  a  member  of  an  in- 
solvent firm,  conveyed  his 
separate  estate  to  a  separate 
creditor 2236 

Declaration  of  one  partner  that  A. 

was  a  member  of  the  firm  .     .     2197 

Execution  creditor  of  an  individ- 
ual member  of  a  firm,  caused 
firm  property  to  be  levied 
upon 2230, 2231 

Extent  of  power  of  a  partner  to 
bind  his  firm  is  a  question  of 
law  in  commercial,  and  a 
question  of  fact 2215- 

Feigned   issue  to  try  the  right  to 

certain  cattle 2268 

Financial  partner  paying  notes  of 
firm  by  exchanging  therefor 
notes  of  third  person  .  .  .  2207 

General  creditors  of  a  firm  have  no 
lien  on  its  assets  any  more 
than  ordinary  creditors  .  .  .  2248- 

Holder  of  a  claim  against  a  firm  legal 

right  to  establish  his  claim      .     2198 

Incoming  partner  can  only  be 
made  liable  by  agreement  for 
prior  debts  ....  2202,  2203 

Individual  members  of  a  firm  may 

execute  a  valid  note      .     .     .     2258 

In  partnership  suits  statute  of  limi- 
tations is  not  available,  unless 
six  years  have  elapsed  .  .  .  2274 

Insolvent  member  of  firm  devoting 
his  individual  property  to  pay- 
ment of  firm's  debts  .  .  .  .  2208 

Jury   were     warranted    in    finding 

that  a  partnership  existed  .     .     2219 

Legal  representative  of  deceased 
person  is  a  party,  he  may 
testify  to  any  facts  ....  2261 

Member  of  a  dissolved  firm,  sold 
all  his  interest  therein  to  his 
partner 2222- 

of  firm  of  real  estate  bro- 


kers receive  money  with  which 
to  pay  land  for  the  party  ad- 
vancing the  money  .... 
—  of  firm  residing  in  one 


222O 


542 


INDEX   TO   CASES. 


PARAGRAPH. 

state   not   served  and  not  ap- 
pearing       2205 

Member  of  a  partnership  cannot 
bind  his  partner  by  a  note, 
made  after  dissolution  .  .  .  2196 

Mining  partnership  is  a  non-com- 
mercial partnership    .     .     . 

Money  borrowed  by  members  of 
old  firm  after  new  member 
was  admitted  . 


No  distinction  between  partnership 
and  individual  claims  .  .  . 

Non-resident  firm  make  an  arrange- 
ment with  two  resident  firms, 
etc 

Note  by  a  partnership  to  one  of  its 
members  for  money  borrowed, 

executed  in  name  of  a  cer- 
tain firm  in  liquidation  . 

.  in  renewal  of  another  made 
by  same  partner  who  signed 
the  last 

Not  necessary  that  an  incoming 
partner  should  do  something  to 
escape  liability 

One  cannot  be  fixed  with  liabil- 
ity as  a  partner  on  the  ground 
that  he  has  been  held  out  as 
one 

...  partner  binding  the  firm 

by  affixing  his  name  and  seal, 

partner  cannot  apply  claim 

of  firm  to  payment  of  his  own 
debt,  without  consent  .  .  . 

partner  borrows  money, 

representing  it  is  for  the  use  of 
the  firm 

.  partner  in  a  firm  has  power 
to  bind  the  others  by  a  note 
given  in  usual  course  of  busi- 
ness   

•Only  in  equity  that  separate  credi- 
tors of  a  partner  are  entitled  to 
preference  over  firm  creditors  . 

Ordinary  firm  cannot  be  held 
liable  for  indebtedness  of  one 
of  its  members,  etc 

Partner  advancing  money  to  the 
firm 

partner  died  after  retiring 

from  firm,  his  administrator 
sued  firm  for  claim  due  estate, 

has  no  implied  power  to 

purchase  land 

-• in  a  non-commercial  firm 

does  not  generally  possess 
power  to  bind  firm  .... 

indorsing  a  note  in  name 

of  his  firm  unknown  to  it  .  . 

,  in  sound  health,  is  made 


2217 

2212 
2198 

2279 
2195 
2252 

2262 
2233 

2239 
2204 

2234 
2245 

2263 
2273 

2267 
2242 

2280 
2217 

2216 
2283 


PARAGRAPH. 

sole   agent  of  the  firm  by  an- 
other, who  is  not 2218 

Partner  signed  his  individual  name 

before  signing  that  of  the  firm,     2264 

surviving    a    firm    may   as- 
sign   a    note    payable   to   the 


firm 


Partners  cannot,  during  the  exist- 
ence of  firm,  claim  individual 
exemption  in  firm's  property  . 
have  no  implied  authority 


2194 


2269 


to  confess  judgment  for  each 
other 2225 

liable    for  goods  furnished 


2281 


the   firm,  although  vendor  was 

ignorant  of  its  existence     .     . 
Partnership    articles   proving   that 

the  special  partner  should  share 

of  the  losses 2201 

is  dissolved  by  the  death  of 

any  of  its  members  ....     2200 
must    be    proved  when    a 

firm  is  sued 2229 

notes  are  a  joint,  and  not  a 

joint  and  several  obligation     .     2199 
note  taken  in  payment  for 


goods  sold 2197 

Party  seeking  exemption  from  lia- 
bility of  a  general  partner  .  .  2256 

Person  permitting  himself  to  be 

held  out  as  a  partner  .  .  .  2240 

who  has  no  interest  in  a 

firm  beyond  that  of  receiving 

a  share  of  profits  ....  2250 

Power  of  one  partner  to  bind  his  co- 
partner rests  alone  upon  usage 
of  merchants  ....  2214-2216 

Property  of  insolvent  firm  is  ordered 

to  be  sold  to  pay  firm  debts  .  2278 

Real  estate  bought  with  firm  funds 

for  firm  purposes  ....  2277 

estate  held  by  firm  as  part- 
ner assets  2246 

Relations  existing  in  joint  owner- 
ship only  is  not  a  partnership, 

Retiring  partner  paid  debts  of  firm 
after  withdrawing  from  it  . 

Right  of  partner  to  sign  firm  name 
to  a  contract  of  indemnity  in 
favor  of  third  person  .  .  . 

Sale  by  a  partner,  a  payment  of  his 
own  debt,  of  goods  of  the  firm, 

Service  upon  one  of  the  firm,  after 

dissolution 2259 

Signers  of  a  merely  joint  note  were, 
the  date  of  the  note,  commer- 
cial partners 2244 

Situation  of  all  partners  that  author- 
ized individual  creditors  to  sue 
out  attachments  against  them,  2260 


2270 
2226 


2211 
2235 


INDEX  TO   CASES. 


543 


PARAGRAPH. 

Surviving  partner  entitled  to  sue  in 

his  representative  capacity  .  2253 

Three  persons  form  a  partnership 
agreeing  to  bear  the  losses  and 
share  profits 2209 

Two  members  of  old  firm  cannot 
bind  third  partner,  who  with 
them,  created  new  firm  .  .  2213 

or  more  parties  engage  in  a 

business  venture 2243 

persons  composing  a  part- 
nership make  a  false  return  to 
assessor  of  revenue  .  .  2223,  2224 

•Question  as  to  partnership  existing 
under  an  agreement  between 
A.  and  B 2221 

Violation  of  good  faith  for  any 
partner  to  stipulate  clandestine- 
ly with  third  person,  etc.  .  .  2228 

When  a  loan  is  made  by  two  mem- 
bers of  a  firm 2254 

a  partner  of  a  firm  may 

transfer  his  interest  in  firm  to 

pay  his  individual  debts  .  .  2272 

a  party  fraudulently  misap- 
propriates the  money  of  his 
firm 2275 

money  is  loaned  for  benefit 

of  business  to  be  refunded, 
without  regard  to  profits  .  .  2251 

PAYABLE  AND  PAYMENT,  Page  314. 

Action  brought  to  establish  payment 

of  a  note 2309 

lies  on  a  note  payable  by 

installments  as  soon  as  first  day 

of  payment  is  passed  .  .  .  2314 

Application  of  money  received  by 
creditor  from  his  debtor  to 
payment  of  special  claims  .  .  2288 

Applying  proceeds  to  payment  of 

other  debts 2305 

Bank  check  given  and  accepted  as 

payment  of  balance  found  due,  2298 

Bill  paid  to  third  party  which  made 
out  on  a  billhead,  on  which 
was  printed  "  All  moneys  to 
be  paid  to  treasurer  "...  2334 

Bonus  is  not  a  gift  or  gratuity,  but 

a  sum  paid  for  services,  etc.  .  2318 

•Cannot  recover  money  because  it 
was  paid  in  ignorance  of  the 
law 2302 

Construed  payment  of  a  mortgage,     2289 

Creditor  who  holds  notes  or  other 
obligations  for  the  payment  of 
money  assigned  to  him  .  .  2290 

Defendant  was  indebted  to  plain- 
tiff, first  as  a  member  of  a  firm, 
afterwards  individually  .  .  2333 


PARAGRAPH. 

Did  not  amount  to  a  payment  of  the 

note 2292 

Draft  of  third  party   received   for 

preexisting  debt 2296 

Giving  of  a  note  of  third  person  is 
evidence  of  payment  of  a  pre- 
existing debt  ......  2308 

Holder  of  notes  accepts  of  maker 
policies  of  insurance  covering 
property  destroyed  by  fire  .  .  2310 

Indorsement  of  partial  payment  on 
a  note  when  the  part  of  pay- 
ment is  controverted  by  payor,  2313 

Legal  presumption  of  payment  of  a 
bond  given  for  the  payment  of 
money  ........  2328 

Married  woman  joined  her  husband 
in  a  mortgage  which  was  as- 
signed to  a  bank  ....  2302 

Money  paid  after  date  of  note,  uot 

indorsed  thereon 2301 

paid  under  mutual  mistake 


for  that  which  has  no  legal  ex- 
istence or  validity  .... 
—  voluntarily  paid  in  dis- 


2306 


charge  of  a  claim  or  to  buy  off 

and  quit  a  criminal  prosecution,    2286 

Note  made  in  this  State,  payable  in 

a  bank  but  not  located  .     .     .     2284 

Oral  agreement  to  extend  time  of 

payment 2292 

Owner  of  note  secured  with  other 
debts  by  mortgage  as  consid- 
eration for  extension  .  .  .  2305 

Partial  payments  applied  when  their 
sum  equals  or  exceeds  the  in- 
terest   2299 

payments  made  on  debt  past 


due 


Party  with  full  knowledge  of  facts 
voluntarily  pays  money  to  sat- 
isfy a  demand  unjustly  .  .  . 

Payee  of  a  draft  receiving  a  check 
for  it  which  he  neglects  to  pre- 
sent until  next  day  .... 

Payment,  by  savings  bank,  of  de- 
posit of  trust  fund  .... 

made  voluntarily  on  an  un- 
founded demand 

of  money  made  dependent 


2322 


2311 


2285 
2331 


2319 


on  the  performance  of  a  con- 
dition     2327 

—  of  part   of  a    debt  before 

,     2304 


due 


of  part  of  debt  without  re- 


lease under  seal 
—  to  agent   who 
full    . 


receipts    in 


to  the  sheriff  of  the  redemp- 
tion money  under  foreclosure, 
Payments   claimed  as  credits  on  a 


2317 
2295 


2287 


544 


INDEX  TO   CASES. 


PARAGRAPH. 

debt,   and   not  allowed   when 
judgment  was  rendered     .     .     2323 

Payments  made  by  a  debtor,  without 
special  instruction  as  to  their 
imputation 2332 

made  voluntarily  by  mort- 
gagee of  claims  against  the 
estate 2321 

.  that  should  be  applied  pro 

rata 2325 

Person  owing  another  several  dis- 
tinct debts  right  of  payments 
thereon 2216 

Plaintiff  held  certain  shares  of  min- 
ing stock  belonging  to  de- 
ceased   2330 

•  held  several  notes  against 
deceased  all  but  one  being 
valid 2330 

Plea  of  payment  tried  by  a  magis- 
trate    .      . 2329 

Premium  note  of  an  insurance  bro- 
ker, received  by  insurers  in  pay- 
ment of  a  policy 2326 

Sale  of  goods  upon  a  promise  by 
purchaser  to  pay  for  them  out 
of  the  avails  of  their  sale  .  .  2315 

Stipulation  in  note  that  no  credit 
shall  be  allowed  unless  in- 
dorsed by  payers 2291 

Suit  against   six  joint  and  several 

makers  of  a   note     ....     2325 

Taking   debtor's   acceptance    does 

not  operate  as  payment     .     .     2324 

note  from  a  debtor  or  a  note 

of  a  third  party  for  a  debt     .     2297 

Third  person,  who  demands  no 
subrogation,  may  tender  to  a 
creditor,  etc 2307 

United  States  is  entitled  to  priority 
of  payment  out  of  effects  of  its 
bankrupt  or  insolvent  debtors,  2335 

Vendee  of  real  estate  contracts  to 
pay  purchase  money  in  cash  or 
cotton 2303 

What  is  not  a  voluntary  payment, 

.     .     2293,  2294 

When  debts  are  of  like  nature,  im- 
putation  of  payment,   etc.     .     2320 
partial  payments  are  made 


on  a  debt  past  due 
—  payment  may  be  inferred  by 
the  jury  from  circumstances  . 
the  payer  of  money  becomes 


2300 
2328 


subrogated  to  the  rights  of  the 
mortgagee 2312 

Where  a  demand  for  return  of 

money  is  necessary  .  .  2292-2294 

•  property  belonging  to  a  firm 

is  mortgaged  to  secure  a  note 
of  firm  .  ,  2312 


PLEDGES,  Page  321. 

PARAGRAPH, 

Acceptance  by  pledger  of  surplus 
arising  from  illegal  sale  of 
articles  pledged 2379* 

Assignee  of  a  note,  held  as  collateral 
security  for  a  debt  due  from 
assignor 2384,2385- 

Assignment  merely  of  an  expected 
surplus  in  property  pledged  to 
secure  a  usurious  loan  .  .  239O 

Bailee  of  goods  for  safe  keeping 
merely  pledges  them  with  in- 
tent to  convert  proceeds  to  his 
own  use 2372 

Bank  knowing  the  note  was  not  the 
property  of  the  party  offering 
it.  .........  2356 

Bill  of  sale  of  goods,  absolute  in  its 
terms,  given  to  protect  vendee 
against  his  liability  as  surety 
for  vendor 2368 

Borrowed  of  a  bank  money  on  call, 
depositing  with  it  mining 
stocks  as  collateral,  etc.  .  .  233T 

Collaterals  which  were  sold  and 
proceeds  applied  to  the  pay- 
ment of,  afterwards  advances 
in  price 2337 

Commercial  correspondent  ad- 
vances his  own  money  for  the 
purchase  of  property  .  .  .  2346- 

Consignee  who  has  made  advances 
on  cotton  shipped  to  him,  has  a 
right  of  pledge  on  it  .  .  .  2375 

Defendant  received  money  of  plain- 
tiff to  insure  him  for  becoming 
bail  for  another 2362 

Deposit  of  certain  Canada  railway 

bonds  as  security  for  a  debt     .     2367 

of  title  deeds  indicates  an 

agreement  to  execute  a  legal 

mortgage 2367" 

of  the  U.  S.  "  five-twenty  " 


bonds  for  safe  keeping  with  a 
bank,  and  its  cashier  pledges 
them 2382 

Factor  pledging  goods  of  his  prin- 
cipal for  his  own  liabilities  .  2369' 

Nothing  less  than  proof  of  knowl- 
edge of  facts  that  show  want 
of  authority  of  party  transfer- 
ing  note 2353= 

No  valid  pledge  of  a  mortgage,  or 
vendor's  privilege  by  mere 
agreement  of  parties  .  .  .  2383 

One  to  whom  note  is  pledged  as 
collateral  security  for  a  debt, 
unless  specially  authorized  .  2386 

who  lends  money  on  pledge 

of  stock  held  in  trust  .  .  .  2339> 

Party  receives  a  pledge  as  security 


INDEX   TO   CASES. 


645 


PARAGRAPH. 

and  suffers  it  to  go  back  into 
possession  of  pledger     .     .     .     2340 

Personal  property  specially  pledged 

for  a  particular  loan  ....     2387 

Person  holding  property  or  security 
in  pledge,  occupies  the  rela- 
tion of  trustee 2347 

holding  stock  in  a  fiduciary 

capacity 2371 

Pledge  of  commercial  paper  as  col- 
lateral security 2347 

ceases  to  be  operative  when 

its  object  is  affected     .     .     .     2363 

— —  for  a  particular  loan,  cannot 
be  held  by  the  pledgee  for  any 

other  loan 2387,  2388 

is  the  lien  created  by  the 


2341 


2345 


2381 


delivery  of  personal  property 

by  owner  to  another  .  .  2350-2357 

Pledgee  can  sell  only,  and  for  the 
purpose  of  applying  proceeds 
to  pay  off  debt  .....  2377 

— of  a  chattel  may  sell  his  in- 
terest in  same,  and  owner  can- 
not recover  of  purchaser  .  . 

-^— —  of  mortgage  bonds  payable 
upon  condition,  like  the  pledge 
of  commercial  paper  .  .  . 

.  of  scrip  sells  more  than  is 

necessary  to  satisfy  his  debt, 
and  pays  surplus  to  pledger  . 

.  of  stock  is  entitled  to 
the  dividends  accruing  while 
he  holds  stock 2342 

.  sells  property  mortgaged  to 

secure  the  note  for  less  than 
the  note  calls  for  and  imme- 
diately sells  it  for  more  .  . 

who  was  surety  on  a  note 

transferred  the  property  to  the 
payee  to  discharge  the  debt     . 

Pledgee's  right  to  purchase  pledged 
collateral  so  as  to  acquire  abso- 
lute title 2344 

Pledgor,  at  the  time  of  making  the 
pledge,  waives  notice  of  sale  . 

'  collecting  dividends  on 

stock  pledged  by  him  .  .  . 

of  a  chattel,  after  tender- 
ing the  sum  due,  the  pledgee 
takes  no  steps  to  recover  pos- 
session   2348 

of  stock  who  in  good  faith 

takes  a  security,  for  his  own 
benefit  in    name  of   an  irre- 
sponsible trustee  .     .  2365 

Possession  by  the  pledgee  is  es- 
sential to  a  pledge  .  .  2349-2358 

Property,  on  pledge,  can  only  be 
applied  as  security  through  the 
process  of  sale 2347 

35 


2374 


2376 


2380 
2343 


PARAGRAPH. 

Right  of  pledgee  to  sell  security  in 
pledge  with  him,  and  apply 
proceeds  to  payment  of  loan  .  2345 

to    sell   pledge   securities 

after  pledger  becomes  a  bank- 
rupt   2338 

Sale  of  stock  made  with  knowl- 
edge of  forgery 2366 

Stock  being  only  transferable  on 
books  of  the  company,  does 
not  prevent  its  pledge  as  se- 
curity  2370 

— — —  of  corporation,  pledged  as 

collateral    security,    is    trans-  i 

ferred  by  pledgee     ....     2336 

Subsequent  bankruptcy  of  the 
pledger  of  a  negotiable  instru- 
ment   2338 

Thing  pledged  may  be  in  the  tem- 
porary possession  of  pledger 
as  special  bailer  .  .  .  2359, 2360 

To  constitute  a  pledge,  there  must 
be  a  delivery  and  retention  by 
the  pledgee  of  the  thing 
pledged 2340 

What  constitutes  a  valid  pledge  of 
securities,  so  far  as  third 
parties  are  concerned  .  .  .  2361 

When  an  accommodation  bill  has 
been  pledged  for  less  than  its 
face 2363 

one  delivers  chattels  to  an- 


other as  indemnity  for  surety- 
ship  2373 

pledge  is  divisible,  pledgee 

can  sell  only  no  more  than  is 
necessary  to  satisfy  debt,  2378-2381 

pledgee    of    a    mortgage 

note,    in   whose   hands  it  has 
been  placed  to  secure  a  debt 

due  him 2374 

Where  bond  and  mortgage  are  as- 
signed as  collateral  for  a  loan 
with  an  agreement,  etc.  .  .  2389 
Without  possession  of  a  pledge,  no 
privilege  can  exist  against 
third  persons  ....  2358-2360 

POSSESSION,  Page  327. 

Deed  for  property  owned  by  wife, 
from  husband 

No  length  of  constructive  possession 
will  ripen  a  defective  title  .  . 

Note,  bond,  or  bill  possessed,  unat- 
tended by  circumstances,  ought 
to  excite  suspicion  .... 

Possession  by  a  man  or  his  tenant 

is  notice  of  title 

of  land  under  color  of  title, 


Prima   facie   evidence   of  owner- 
ship 


2393 
2392 

2394 

2391 
2392 

2394 


646 


INDEX  TO   CASES. 


POWER,  Page  328. 

PARAGRAPH. 

Attorney  who  makes  a  surrender     .     2399 
Deed   of  conveyance    executed  in 

his  own  name  by  one  having  a 

special  power  of  attorney  .     .     2398 
Grantor  having  power  to  sell,  and 

sells 2396 

Power  committed  to  two  or  more 

persons .     . 2395 

Special  power  of  attorney     .     .     .     2400 
When   party   alleges    that   a  deed 

executed  by  his  attorney     .     .     2397 

PREFERENCE,  Page  328. 
Bond  given  by  a  debtor  in  failing 

circumstances,  covering  all  his 

property 2402 

Paying  a  particular  creditor  to  the 

exclusion  of  others    ....     2401 
Sale   of  property  by  ,an  insolvent 

debtor  made  in  good  faith  .     .     2401 

PRESUMPTIONS,  Page  329. 

Drawer  of  a  draft  is  presumed  to  be 

solvent 2404 

Letters,  mailed  to  a  person  directed 
to  him  at  his  place  of  busi- 
ness   2409 

Mortgagee  in  possession,  no  pre- 
sumption can  arise  from  lapse 
of  time  .  .  , 2408 

Mortgage  presumed  after  lapse  of 

twenty  years 2407 

No  presumption  of  delivery  in  re- 
spect to  forged  instruments  .  2405 

Presumed  that  notaries  of  other 
states  have  no  greater  powers 
than  those  of  this  state  .  .  .  2403 

Purchaser  having  notice  of  facts 
upon  an  adverse  claim  de- 
pends   2406 

Rules  as  to  charging  drawer,  is 
presumed  to  prevail  elsewhere 
as  here 2404 

Wife's  separate  and  personal  pos- 
session of  specific  articles  of 
personal  property  ....  2410 

PRINCIPAL  AND  AGENT,  Page  329. 

Agent  authorized  to  apply  pro- 
ceeds of  sales  to  payment  of 
drafts  so  drawn,  as  they  ma- 
ture    2424,  2425 

. did  deliver  a  policy  giving 

a  credit  to  insurer  ....  2422 

. employed  to  drive  cattle 

with  possession  thereof .  .  .  2420 

— investing  money  for  his 

principal  exacts  a  bonus  for 
himself,  unknown  to  princi- 
pal   2419 


PARAGRAPH. 

Agent  used  money  belonging  to 
his  principal  on  his  own  ac- 
count .  .' 2417 

Agents,  without  express  authority, 

assume  to  act  for  their  principal,  2415 

Agreeing  to  pay  interest  for  time 
elapsed  between  time  of  agree- 
ing to  loan  and  delivery  of  the 
money 2416 

Facts  which  come  to  knowledge  of 
agent  while  not  engaged  in 
business  of  agency  ....  2421 

Gratuity  given  an  agent  secretly  to 
influence  him  to  act  in  favor  of 
giver 2412 

Instrument,  executed  by  agent, 
shows  on  its  face  names  of 
contracting  parties  ....  2423 

Insurance  companies  directs  agent 
to  deliver  policies  only  upon 
full  payment  of  premium  .  .  2422 

Money  left  with  agent  for  one  who 
has  negotiated  with  principal 
for  it  on  loan 2416 

One  purchasing  goods  for  another, 
contracts  in  his  own  name 
without  disclosing  his  princi- 
pal   2413 

Person  employed  to  carry  on  an- 
other's business  acts  accord- 
ingly   2411 

Principal  is  liable  for  acts  of  agent 
performed  for  the  benefit  of  the 
principal 2419 

Ratification  by  principal  of  his 
agent's  acts  without  full  knowl- 
edge of  the  facts  existing  .  .  2418 

Subsequent  disclosure  of  the  prin- 
cipal   2414 

To  clear  agent  from  liability     .     .     2413 

When  the  vendor  supposes  the 

buyer  is  acting  as  agent  .  2413,  2414 

Where  no  express  command  or 

privity  is  proven 2419 

PRINCIPAL  AND  SURETY,  Page  331. 

Agreement  between  holder  and 
principal  maker  of  a  note  that 
latter  may  retain  sum  due  .  .  2433 

to    forbear   for  a   definite 

period  is  consideration,  etc.     .     2433 

Bond  executed  in  blank  by  H.  and 
sureties  to  enable  him  to  raise 

#30° 2427 

executed   in    blank,  on   a 

specific  purpose 2427 

signed  on  Sunday  but  dated 


to  take  effect  on  a  week  day    .     2435 
Bonds  taken  by  an  officer  in  the 

course  of  official  duty     .     .     .     2441 


INDEX  TO   CASES. 


547 


PARAGRAPH. 

Cashier  of  a  bank  releasing  a  surety 
upon  a  note  or  bill  belonging 
to  his  bank  ....  2428-2431 

,  on  inquiry  by  a  surety  who 
is  an  officer  of  the  bank,  that 
note  upon  which  he  is  surety 
has  been  paid 2430 

Death  of  a  joint  obligor,  who  was 

a  mere  surety 2439 

Deed  of  trust,  executed  by  principal 
debtor,  as  consideration  for  an 
extension  of  time  ....  2436 

.Firm  becomes  responsible  for  the 
payment  of  any  sum  not  to  ex- 
ceed, etc 2437 

•  is   surety,  and  one  of  its 

members  is  also  member  of  the 
directors  of  the  bank     .     .     .     2431 

Guaranty    affected     by    death     of 

guarantor 2438 

Liability  of  a  surety  is  limited  to 
the  express  terms  of  the  con- 
tract   2440 

Mere  indulgence  by  a  creditor  to 

the  principal  debtor  ....     2452 

Mortgage  record  takes  rank  before 

its  own  registry 2453 

Privileged   debts,  first  paid  where 

the  estate  is  insolvent    .     .     .     2453 

Proof  that  administrator's  authority 
had  become  extinguished  be- 
fore suit  was  brought  .  .  .  2434 

•Question  as  to  the  liability  of  re- 
tiring partners  of  a  firm  for  the 
payment  of  rent  .  .  .  2440-2451 

Receiver  of  an  insolvent  savings 
bank  executed  his  bond  with 
surety,  and  subsequently  re- 
signed   2443 

Release  of  principal  debtor,  against 
whom,  with  surety,  a  joint 
judgment  has  been  obtained  .  2432 

Seizure  of  property  under  execution 

of  a  valid  judgment      .     .     .     2454 

"Set-off  by  principal  and  surety 
owing  to  the  insolvency  of 
plaintiff 2440 

Several  original  debtors  contract 
with  others  for  their  assump- 
tion and  payment  of  common 
debts 2444,2445 

Sureties  released  by  creditor  ex- 
tending time 2437 

Surety  signed  a  bond  upon  con- 
dition that  he  was  not  .  .  .  2435 

Surety's  liability  for  waste  com- 
mitted on  premises  by  tenants,  2448 

When  real  estate  of  the  surety  has 
been  levied  upon  and  sold  at 
sheriffs  sale  .  ,  2426 


PARAGRAPH. 
Where  the  engagement  of  a  surety 

is  for  the  future 2442 

Vendor  must  record  his  sale  to  hold 

his  privilege 2453 

Vendor's  privilege  is  only  operative 

as   to  third  persons  from  the 

moment  of  its  registry     .     .  .     2453 

PROFITS,  Page  335. 

Probable  profits  as  a  basis  upon 
which  to  estimate  damages 

Property  purchased  by  a  wife  on 
credit  of  her  separate  estate,  or 
of  her  earnings 


PROMISE,  Page  336. 

Action  on  original  promise  to  pay, 

Holders  of  a  note  demanded  pay- 
ment of  the  indorser  .  .  . 

Insufficient  as  a  promise  to  pay     . 

Man  promising  to  see  another  harm- 
less should  he  become  surety 
for  third  person 

Nature  of  promises  made  by  credi- 
itors 

Oral  promise  to  pay  what  the  per- 
son to  whom  it  is  made  may 
become  liable  for  .... 

Promise  made  to  a  debtor  for  a 
valuable  consideration,  to  pay 
his  debt  to  a  third  person  „  . 

When  a  promise  to  pay  a  debt  of 
another  antecedently  con- 
tracted . 


2455 
2456 

2458 

2457 
2457 

2461 
2459 

2461 
2459 
2460 


PROMISSORY  NOTES,  Page  336. 

Absence  of  proof  to  show  when 
notes  were  transferred  by  the 
payee 2726 

Acceptance  of  a  forged  mortgage 
from  agent  of  the  grantee  of 
the  land 2656 

Accepted  draft,  which  has  been 
misappropriated  in  hands  of 
bonafide  holder 2703 

Accommodation  makers  of  a  joint 
and  several  note  pays  and  re- 
issues it 2479 

made  for  payee,  without  re- 
striction as  to  its  use     .     .     .     2636 
note  signed  at  request  of 


payee 2633 

Acting  under  the  advice  of  legal 

counsel 2721 

Action  against  maker  of  a  note  by 
a  bona  fide  indorsee,  before 
due,  and  for  value  ....  2555 

against  one  of  the  in- 

dorsers 2561 

brought  against  one  of  sev- 
eral indorsers.  ,  2848 


548 


INDEX  TO   CASES 


PARAGRAPH. 

Action  by  a  N.  B.  upon  a  note, 
one  count  of  the  answer  al- 
leged that  more  than  seven  per 
cent,  was  taken 2908 

by  payee  of  a  joint  and  sev- 
eral note,  payable  on  demand,  2493 

— — —  on  a  note,  alleged  to  have 
been  bought  by  the  defendant 
for  the  plaintiff's  intestate.  .  2868 

.  on  a  note  by  a  holder  who 

received  it  after  it  was  due .     .     2789 

— —  on  a  note  having  two  years 
to  run,  the  maker  having  be- 
come insolvent  and  left  his 
domicile 2844 

•  on  a  note  signed  by  a  mar- 
ried woman  separate  as  to 
property,  without  authority  of 
husband 2803 

on  a  note  when  the  defence 

is  usury 2673 

upon  an  unindorsed  note, 


plaintiff  claiming  to  be  the 
owner  thereof  by  devise  from 
payee 2871 

Addition  of  name  of  another  joint 
maker  to  a  note  without  knowl- 
edge or  consent  of  the  others  .  2533 

Admitting  corporate  existence  .     .     2582 

Administrator  suing  in  his  own 
name  on  a  note  payable  to  him 
as  administrator 2739 

Agent,  in  whose  hands  a  note  has 
been  placed  for  collection,  may 
sue  in  his  own  name  .  .  .  2470 

wrote  the  words  "  at  eight 

per  cent."  on  the  note,  with  the 
assent  of  the  maker  ....     2769 

Agreement  by  a  debtor  and  credi- 
tor that  the  creditor  will,  at  a 
future  day,  accept  new  note, 
etc 2505 

• by  the  indorsee  of  a  note 

for  a  definite  extension  of  time 

of  payment  ....  2495,  2496 

that  amounts  to  an  accord 

and  satisfaction 2520 

Allegations  of  the  petition  with  re- 
gard to  execution  of  a  note     .     2770 
Alteration  of  a  writing,  after  deliv- 
ery by  a  third  person,  without 
knowledge  of  obligee     .    2695,  2696 

-  of  computed  note  by  princi- 
pal obligor 2696 

of  note  by  one  of  the  mak- 
ers, by  increasing  the  amount,     2748 

of  the  date  of  a  note  with- 
out consent 2572 

Alterations,  erasures,  mutilations  of 
a  paper  upon  which  a  liability 
is  sought  to  be  established  .  .  2816 


PARAGRAPH, 

Anti-commercial  statutes  of  this 
(Miss.)  state,  apply  only  to 
defence  between  those  con- 
nected with  legal  title  .  2677,  267& 

Application  of  a  payment  made  by 
plaintiff  upon  another  note  due 
from  same  parties  ....  2915 

of  the  doctrine  of  Us pendens,    2679" 

A.  owing  B.,  as  a  surety,  gave  B.'s 
agent  his  note  which  he  as- 
signed to  plaintiff  for  value  af- 
ter his  agency  ceased,  and 
note  was  paid  the  principal 
debtor 2545- 

Assignee's  rights  limited  to  those  of 

the  payee 2583- 

Assignor  of  a  note  is  liable  on  his 
contract  of  assignment,  only, 
etc.  .  . 2976 

Authorized  plaintiffs,  as  bona  fide 
holders  for  value,  to  fill  in  the 
amount  on  note 2630 

Bankruptcy  of  the  maker  of  a  note 

at  the  maturity  thereof .  .  .  2549' 

Bank's  paying  the  note  of  a  deposi- 
tor by  mistake,  and  then  can- 
celling the  payment.  .  .  .  2624 

stamp  on  a  promissory  note,     2834 

Bearer,  owner  and  holder  of  a  note,     2598 

Before  a  note  becomes  due  the 

maker  absconds 28291 

Bill  accepted  by  a  firm,  a  notarial 
certificate  of  protest  must  state 
who  compose  the  firm  .  .  .  2879' 

or  notes,  when  a  contract  un- 
der seal  must  be  so  recited  in 
body  thereof 290£ 

Bills  and  notes  bearing  the  stamp 

of  a  bank 2699 

Bond  and  mprtgage  assigned  to  a 

third  party  in  trust  ....  2796 

Bonds  and  treasury  notes  of  U.  S. 
payable  to  bearer  at  a  definite 
future  time 2674-2676 

Branch  banks  are  agencies  if  on 
principal  banking  corporation 
or  firm 2763 

Burden  of  proof  to  show  that  pur- 
chaser obtained  note  for  value 
in  good  faith 2562 

By  mistake,  note  at  two  months, 
dated  January  1st,  1854,  in- 
stead of  January  1st,  1855  .  .  2546- 

Cases  of  bills  of  exchange,  notes 
and  other  commercial  contracts, 
a  calendar  month  is  recognized,  2489- 

Case  where  a  blank  space  was  left 
in  filling  up  a  note  in  which  in- 
creased value  might  be  added,  2501 

Certain  sum  is,  as  principal  and  in- 
terest on  said  note  ,  ,  2584 


INDEX   TO   CASES. 


549 


*   PARAGRAPH. 

Claimant  in  insolvency  received,  as 
holder  of  a  note,  a  composition 
on  account  of  his  claim  .  .  .  2838 

Collateral  contract  to  pay  certain 
sum  per  month  as  interest  on  a 
note 2544 

Commodation  notes  which  were  di- 
verted from  the  purpose  agreed 
upon 2563 

•Conditional  payment  of  a  promis- 
sory note 2594 

Consideration  for  a  note  given  by 
maker  toward  the  payment  of 
moneys  received  and  misused 

by  him 2710 

for  a  note  was  expressed  to 


be  for  stock  in  R.  R.  Co.,  that 
afterward  increased  its  stock  . 
of  agreement  in  fraud  of 


2514 


other  creditors 2593 

of  a  note  is  open  to  inquiry,     2784 

•Construing    contract    of    guaranty 

whether  it  is  a  note  or  not .     .     2640 

Contemporaneous   and    subsequent 

guarantees 2786 

.  written  agreement,  executed 
by  the  payee  of  a  promissory 
note 2521 

•Contract  to  carry  an  indebtedness 

of  another 2564 

— —  to  pay  eighteen  per  cent, 
interest,  which  is  not  entered 
in  note 2608,  2609 

to  perform  duties  of  an  office,       550 

which  the  law  implies  from 

the  indorsement  of  a  note  .     .     2566 

-^—^—  written  on  a  separate  piece 
of  paper  between  the  maker 
and  payee  of  a  note,  when  it 
was  made 2782-2788 

•Court  has  repeatedly  recognized  the 
rule  that  an  express  agreement, 
etc 2517 

•Creditors  alone  can  assail  plaintiffs 
on  ground  that  transfer  of  note 
was  a  fraud  of  the  creditors  .  2670 

Creditor  holding  mortgage  note  of 
third  person  as  collateral  se- 
curity   2592 

Days  of  grace  on  promissory  notes,     2594 

Debtor  of  a  bank  transferred  a  note 

in  payment  of  his  debt    .  2474,  2475 

Declaration  against  assignor  of  note 
upon  his  assignment  made  in 
Illinois 2684 

of  an  agent  to  a  third  per- 
son   2625 

on  note  that  is  made  in  a 

foreign  state 2720 

Defendant  gave  a  note  in  payment 


PARAGRAPH. 
of  a  patent  which  he  alleged 

was  a  fraud 2701 

Delay  in  forcing  note  against  maker,     2751 
Demand  and  refusal  of  payment  of 

a  note  on  last  day  of  grace .     .     2467 

for  the  payment  of  a  note  .     2599 

Description  of  the  note  is  sufficient 
without  an  averment  of  the 

consideration 2692 

Devolves  upon  defendant  to  show, 
if  he  claims  that  the  note  was 
fraudulently  obtained     .     .     .     2552 
Dishonor  of  a  note  caused  by  delay 

of  its  presentation  for  payment,     2483 
Donation  of  a  note  to  a  church  .     .     2522 
Draft  issued  and  check  forwarded 
to  payee  of  draft  by  the  maker 

of  the  draft 3651 

Drafts  did  not  specify  any  place  of 

payment 2648 

drawn  in  Canada,  no  place 

of  payment  specified  therein  is 
governed  by  laws  of  Canada  .     2648 

Due  presentment  of  a  note,  when 

denied 2856 

Duty  of  bankers  and  brokers  deal- 
ing in  U.  S.  paper,  when 
served  with  notice  of  loss  of 
such  securities 2676 

Equity  may  rectify  a  written  instru- 
ment drafted  by  mistake,  acci- 
dent or  fraud 2717 

Erasure  or  interlineation  in  a  note 

will  vitiate  it  unless  explained,  2905 

Error  in  cancelling  the  signature  of 
maker  of  a  dishonored  note 
and  writing  "  paid  "  on  it  .  .  2763 

Evidence  as  that  a  note  made  at 
Quebec,  although  dated  at 
Montreal 2791 

introduced  was  the  note,  the 

indorsement  thereof  and  a  pro- 
test   2618 

to  impeach  a  note  in  hands 

of  a  bonafide  purchaser     .     .     2873 

Exchanging  a  new  for  an  old  note 
is  not  a  payment  of  the  old  one 
unless  so  agreed 2633 

Executing  a  note  in  the  name  of  an- 
other   2597 

Execution  of  a  note  is  only  its 

actual  making  and  delivery  .  2783 

Expressly  stipulates  in  instrument 
that  no  extension  of  time  shall 
affect  liability 2715 

Extension  of  time  and  suspension 

of  the  right  of  action  .  .  .  2642 

Fact  that  a  married  woman  owns 
separate  estate  is  not  alone 
sufficient  to  give  her  note  va- 
lidity   2609 


INDEX   TO   CASES. 


PARAGRAPH. 

Facts  which  constitute  mere  matter 

of  defence 2866 

Firm  issued  paper  with  accommo- 
dation indorsements,  and  pro- 
tected indorsers  by  a  mortgage,  2827 

Firm's  note  held  by  R.  After  it 
was  given,  some  members  of 
the  firm  retired,  leaving  it 
solvent 2821,  2822 

Forbearance  to  one  maker  of  a 

note 2586 

Gambling  debt,  paid  by  giving 

therefor  a  note  .  .  .  2542-2543 

General  commercial  law,  a  note  does 
not  extinguish  the  debt  for 
which  it  is  given 2894 

Genuineness  of  the  original,  and 
correctness  of  the  preserved 
copy  of  lost  note  may  be  es- 
tablished by  parol  evidence  .  2570 

Genuine  note  taken  up  and  de- 
stroyed by  giving  a  new  note 
with  forged  indorsements  .  .  2884 

Given  in  discharge  of  an  antece- 
dent debt  in  R.  I.  does  not  dis- 
charge the  debt,  etc.  .  2861, 2862 

Giving  a  note  for  an  antecedent 

debt 2504 

Holder  and  owner  of  a  note  can- 
celling any  of  the  indorse- 
ments   2835 

•i  of  a  note  being  requested  by 

a  surety  to  proceed  against 
principal  maker  of  note,  fails 
so  to  do .  .  .  . •  .  .  .  .  2833 

•  of    a    note   of   a    married 
woman 2876 

•  of  a  note  with  regard  for  ac- 
commodation indorser    .     .     .     2660 

— — of  a  note  secured  by  mort- 
gage   2574 

•  of  a  note,  who  bought  it  for 
value   before   it   fell  due,  and 
without    notice    of    payments 
made   on  it 2780 

n  of  a  solidary  note  seeking 

to  have  its  solidarity  impaired,  2875 

.  of  notes  representing  pur- 

chase money  of  land,  may  en- 
force his  lien  against  land  .  .  2657 

i  of  paper  taken  for  good 
consideration  in  usual  course 
of  business 2490 

of    paper   upon   an    unre- 

jected  contract,  on  which  pay- 
ment has  been  made     .     .     .     2682 

Inadequacy  of  payment  for  a  note, 

2477,2478 

Indemnity  before  paying  a  lost 

note,  f 2472 

Indorsed   note   was   discounted   at 


PARAGRAPH; 
drawer   at  ma- 

2884- 


bank   for  the 

turity 

Indorsement  by  payee  of  a  note  is 

a  contract  to  pay  it,  etc.  .  . 

in  blank  by  payee  of  a  note, 

made  before  a  note  was 


signed 

Indorser  having  security  in  his  own 
hands  fully  equal  to  his  lia- 
bility   

in  debt  to  maker  of  a  note 

when  it  was  made  .... 
of  a  note,  though  an  in- 


2611 
2510 

2855- 


2794 
2595- 


dorser  for  accommodation  only, 

is  not  a  "  surety  "      .     .     2690,  2691 

paid  and  took  up  note  on 

which  he  brings  suit     .     2619,  2620- 

said  to  plaintiffs  agent  that 

he  doubted  if  the  maker  would 

pay  the  note 2462 

— • taking  collateral  security  of 

a  maker  of  a  note  ....  2793- 

waiving  a  demand  and  no- 
tice   2795 

Indorsers  take  up  note  they  in- 
dorsed by  giving  their  own  . 

Induced  to  sign  a  note  by  fraudu- 
lent representations  as  to  char- 
acter of  the  paper  .... 

Inquiry  concerning  an  immaterial ; 
inquiry  as  to  an  inference  .  . 

Insolvent  gives  his  note  to  one  of 
his  creditors  in  settlement  of  a 
claim  of  creditor  against  an- 
other party 2830> 

merchant  sells  to  his  penni- 
less clerk  a  stock  of  goods  .  2567 

Instrument  beginning,  "we  as 
trustees,  but  not  individually, 
promise  to  pay  " 

completed  and   delivered, 

2606,2607 

executed  in  this  form,  re- 


2491 


2740 


ceived  of  D.  M.  P.  five  hun- 
dred dollars  due  on  demand 

in  the  following  form  is  not 

a  negotiable  instrument     .     . 
— ,  which  in  terms  and  form, 


2895 
2698- 


is  negotiable,  recites  that  addi- 
tional interest  will  be  paid  .  25091 

Interest  of  payee  to  get  a  note  off 

his  hands 2540- 

Joint  and  several  notes  signed  by 
three  persons,  as  makers,  one 
adding  to  his  name  surety  .  .  262T 

note  signed  by  two  persons, 

one  being  liable  for  half  as 
principal  and  half  as  surety  .  2807 

Judgment  given  against  agent  of  a 
forged  mortgage,  although  the 
mortgage  was  declared  void  .  2656: 


INDEX   TO   CASES. 


551 


PARAGRAPH. 

Judgment  on  a  note  or  contract  oper- 
ates as  a  merger  ....  2662 

Lacking  the  essential  quality,  as  to 
time  of  payment,  the  note  is 
not  a  negotiable  one  .  .  .  2634 

Land-mortgage  securing  note 
brings,  on  sale,  less  than 
amount  of  note 2747 

Law  in  force  when  a  promissory 

note  is  made 2765 

Legal  import  of  a  blank  indorse- 
ment on  a  note 2581 

Liability  of  payee  of  notes  secured 

by  mortgage  ......  2700 

i.  of  the  maker  and  indorser 

of  a  note 2864 

Limitation  of  power  of  attorney  as 
to  signing  indorsements  for 
his  principal 3694 

Made  a  promissory  note,  and  ex- 
pressed to  be  for  value  re- 
ceived   2559 

Maker  of  a  dishonored  note  induces 
a  third  person  to  buy  the  note 
by  promising  to  pay  it  ...  2550 

i  of  a  note  surety  for  other  of 
which  holder  had  notice  when 
note  was  made 2565 

i  of  note  as  a  witness,  after 
judgment  recorded  against  in- 
dorser   2809 

.  of  paper,  which  is  void  in 

hands  of  payee 2525 

— —  or  indorser  of  a  note  show, 
that  although  dated  in  Boston, 
was  actually  made  in  New 
York 2507 

Makers  admitted  the  execution  of 
note,  but  denied  the  indorse- 
ment   2902 

^—^—  of  a  note  seek  to  annul  a 
judgment  by  the  administrator 
of  succession 2469 

Making  a  note  payable  at  a  bank 

authorizes  it  to  pay  it  ...  2624 

— future  services  good  con- 
sideration   2587 

of  a  champertous  under 

the  law  of  the  state  .  2486,  2487 

Married  woman's  not  stating  an  in- 
tention to  charge  her  separate 
estate  therefor 2635 

^— —  woman  with  consent  of 
husband  making  assignment 
of  a  note 2874 

Material  alteration,  the  erasure  of 

the  word  surety,  by  payee  .  .  2577 

Member  of  a  firm  gave  firm's  note 
in  payment  of  debts,  some  of 
which  existed  before  new 
member  joined  firm  ....  2528 


PARAGRAPH. 

Memorandum  by  maker  of  note. 
My  note  becoming  due  the  loth 
instant,  good  for  ten  days  after 
date 2813 

of  "  F.  &  L."  bonds  as  col- 
lateral claimed  to  be  an  agree- 
ment, etc. 2752 

Mere   knowledge   of  non-payment 

of  a  protested  note    ....     2737 

memorandum   made   by  a 

party  on  a  note,  or  obligation, 

in  his  possession 2814 

Merely  a  transfer  of  original  lien, 
and  a  change  in  the  form  of 
the  security 3655 

Merging  original  cause  of  action  by 
the  acceptance,  by  parties  in 
interest,  of  a  note  ....  2534 

Mortgage  note  of  a  wife  knowingly 

secured  by  a  creditor     .     .     .     2588 

•^—^—  required  ten  per  cent,  per 
annum,  payable  annually.  Note 
ten  per  cent,  per  annum  .  .  2535 

Mother  signs  a  note  under  a  threat 

to  arrest  her  son  as  a  thief      .     2843 

Must  be  an  indorsement  or  assign- 
ment on  note 2581 

Need  not  prove  a  note  was  made 

on  the  date  it  bears  ....     2859 

Negligence  may  consist  in  either 
failing  to  do  what  should  be 
done,  or  doing  what  he  would 
not  have  done 2704 

Negotiable    securities    stolen    and 

sold  by  the  thief 2473 

New  firm  issuing  notes  in  renewal 

of  notes  of  the  old  firm     .     .     2827 

— —  note  given  for  balance  due 
on  old  note,  because  of  want 
of  space  on  an  old  note  for 

entry  credit 2845 

note  given  to  take  up  an- 


other then  due 2633 

Non-negotiable,  is  given  to  a  mar- 
ried woman  by  a  third  party, 
and  she  transfers  the  note  .  .  2760 

Non-payment  of  a  note  at  time 
specified,  is  dishonored 

No  set  form  of  words  is  requisite  to 
constitute  a  note  .... 

Note,  blank  as  to  amount,  but  per- 
fect in  all  other  particulars 

deposited  in  bank  for  col- 
lection by  its  owner,  was  paid 
by  a  person  not  a  party  thereto, 
2685,  2686 

drawn  for  a  certain  sum, 

payable  to  any  person,  "  or  or- 
der," "or  assigns,"  "or 
bearer" 2498,2499 

drawn  payable  to  wardens 


2547 
2850 
2541 


552 


INDEX  TO   CASES. 


PARAGRAPH. 

and  vestry  of  a  church,  or 
bearer 2743 

Note  due  from  a  resident  of  Col- 
orado to  a  resident  of  Califor- 
nia, is  not  taxable  in  Colorado,  2513 

executed  by  maker's  mark, 

if  indorsed 2823 

executed  on  Sunday,  but 

bore  date  the  following  day, 
indorsed  before  maturity  for 
value 2761 

. for  dollars,  made  in  Georgia 

in  January,  1863  .  .  2722-2724 

given  a  creditor  to  induce 

him  to  sign  composition  .  .  2589 

given   as   partial   payment 

for  a  piece  of  work  ....     2870 

given  by  insolvents   a  few 

days  before  the  insolvency      .     2826 
given  by  new  firm  after  dis- 
solution of  the  old  in  satisfac- 
tion of  old  firm's  guarantee     .     2790 

•  given  by  one  person  to  pro- 
tect property  of  another  from 
his  creditors,  of  which  plaintiff 

was  cognizant 2560 

given  for  additional   stock 

in  a  corporation  .     .     .     2886,  2887 

^— —  given  for  a  patent  right  .   .     2492 

given  for  balance  due  on  set- 
tlement in  a  forbidden  trans- 
action   2671 

given  for  stock  in  a  new 

company 2649 

. given,  in   consideration   of 

forbearance 2602 

.  given  to  have  criminal  pro- 

ceeding discontinued     .     .     .     2596 

in  the  ordinary  form,  signed 

by  a  married  woman,  made 
payable  to  her  husband  .  .  2709 

in  which  it  is  agreed  to  al- 
low interest  to  become  princi- 
pal, if  not  paid  annually  .  .  2738 

— is  evidence  of  indebtedness 

and  substitution  of  one  for  an- 
other does  not  discharge  the 
debt .  .  2904 

. is  not  negotiable  if  its  pay- 
ment depends  upon  a  contin- 
gency   2891,2892 

issued   for   accommodation 

of  indorser,  and  was  by  the 
latter  diverted 2901 

. made  by  defendant  in  favor 

of  another,  which  was  not  paid 
or  protested  at  maturity      .     .     2825 
made  by  one  member  of  a 


firm  in  its  name 
made  in  the  U.  S.  and  pay- 
able   there,    defendant,   after 


2463 


PARAGRAPH. 

action  brought,  tendered  pay- 
ment in  Canadian  currency  .  2849 

Note  made  in  this  state,  discount- 
ed in  another  state,  at  rate  of 
interest  greater  than  here  .  .  2661 

made   payable   a   specified 

number  of  months  after  date  .     2716 

made  payable  on  condition 

that  a  case  pending  in  court  is 
decided  in  favor  of  payee  .  .  2731 

not   made    to   the  order  of 

the  plaintiff,  the  payee  .     .     .     2710 

not  yet  due  does  not  consti- 
tute a  debt,  which  can  be  at- 
tached to  answer  a  judgment 
debt 2889 

not  yet  due,  indorsed  by  a 

party  who  has  since  become 
bankrupt 2805 

of   a    turnpike    company, 

issued  before  it  had  filed  a  copy 

of  its  by-laws 2468 

on  which  the  interest  is  pay- 
able quarterly 2732 

payable  "  at  any  bank  "  in 

a  specified  city,  proof  of  pres- 
entation at  any  bank  in  such 
city,  etc 2637 

payable  at  one  or  two  years 

after  date,  or  statement  on  its 
face  that  it  was  given  and  se- 
cured, etc 2712 

payable  in  bank,  indorsed, 

for  value  before  maturity    .     .     2466 

payable  one  day  after  date,     2713 

"  payable  on  demand  after 

date  "  at  a  bank,  with  interest 

"  after  maturity  "      ....     2483 

payable      on     demand     is 

barred  by  the  statute  of  limi- 
tation at  expiration  of  six 
years .  2910 

payable  on  demand  thirteen 

years  after  its  date    ....     2846 

payable  to  bearer  is  vested 

in  each  successive  holder,  2621-2623 

payable   to   bearer,  though 

overdue  and  dishonored,  passes 
by  delivery  legal  title  to 
holder 2687,2688 

payable  to  maker  or  ficti- 
tious person 2663 

payable  to  order  of  A.,  is 

given  by  him  to  the  maker, 
without  indorsing  it  ...  2746 

promising  to  pay  A.,  on  his 

order 2819 

signed    by   one   person   as 

principal  and  another  as 
surety 2746 


INDEX  TO   CASES. 


553 


PARAGRAPH. 

Note    signed    by    one    who    is  a 

minor 2817 

signed  by  the  secretary- 
treasurer  of  a  municipality  .  2847 

.. signed     "  George     Moore, 

treasurer  of  M.  F.  D.  Ass."    2580 

signed  "  U.  S.  Manf 'g  Co., 

George  H.  Fox  treasurer  "      .     2625 

signed  with  an  X  in  pres- 
ence of  a  witness  ....  2804 

sued  that  had  been  obtained 

by  surprise  and  false  representa- 
tions   2828 

to  a  creditor  for  a  balance 

of  his  claim,  in  consideration 
of  his  signing  a  deed  of  com- 
position   2836 

—— • —  transferred  after  time  ap- 
pointed for  payment  .  .  .  2824 

transferred,  by  indorsement, 

as  collateral  security      .     .     .     2869 

——  under  j£50  drawn  to  order, 
transferred  by  him  to  whose 
order  it  is  made 2800 

under  seal,  is  made  with  an 

agent  in  his  own  name  .     .     .     2573 

— —  was  in  the  bank  where  it 
was  made  payable,  and  the 
maker  had  no  funds  for  its 
payment 2856 

was  transferred  to  plaintiff 

after  the  death  of  the  payee     .     2911 

was,  "  twelve  months  after 

date,  or  before,  if  made  out  of 
the  sale  of  a  machine  "  .  . 
which  is  payable  "on  or 


before  three  years  from  date," 
which  the  promisor  gave 


2890 
2527 
2741 


for  the  benefit  of  his  son 

Notes  given  for  a  larger  sum  than 

was  due 2714 

— —  made  payable  at  defend- 
ant's bank,  and  the  funds  not 
being  there,  demand  for  pay- 
ment was  not  necessary  .  .  2657 

Notice  of  protest  to  indorser  within  . 
confederate     lines     within     a 
reasonable  time  after  the  war,    2736 

— — — -  to  a  member  of  a  firm,  in- 
dorsers  of  certain  notes,  that 
makers  refused  payment  .  .  2903 

Obligation  before  a  notary  to  pay  a 

certain  sum  of  money      .     .  .     2851 

Offer  by  indorser  to  make  himself 

promissor  by  signing  new  note,     2462 

Offered  to  prove  that  the  note  was 

given  without  consideration     .     2902 

One  of  two  members  of  a  firm  in 

hands  of  a  bona  fide  holder     .     2626 

— —  who  has  executed  a  note  in 

error,  for  a  debt  not  due     ,      ,     2505 


PARAGRAPH. 

One  who  is  in  fact  owner  of  a 
note  negotiable  by  indorse- 
ment, but  not  indorsed  to  him,  2508 

who  takes  a  stolen  instru- 
ment bona  fide  for  value  .  .  2603 

Only  evidence  to  sustain  the  allega- 
tion of  mistake  consisted  of  a 
telegram  from  defendant  cash- 
ier   2658 

Omission  to  insert  in  note,  given  for 
a  patent  right,  as  required  by 
statute 2538,2539 

Omitting  an  indorsement  through 

accident,  mistake  or  fraud      .     2697 

Oral  evidence  to  show  that  payee 
agreed  to  treat  him  as  an  in- 
dorser, etc 2729 

Owner  of  several   past  due  notes, 

against  same  parties      .     .     .     2659 

Paper  that  is  absolutely  void  for 
want  of  power  in  the  maker  to 
issue  it 2705 

Parol  agreement  as  to  disposal  of 

purchase  money  notes    .     .     .     2777 

evidence    is   admissible   to 

show  want  of  failure  of  con- 
sideration   2907 

evidence  of  the  indorse- 
ment of  a  note  without  pro- 
ducing it 2471 

evidence  as  to  the  meaning 

of  the  term  current  funds  .     .     2516 

testimony     as     to     written 

agreement    made    at  time   of 
making  and  indorsing  a  note,     2725 
testimony    is    inadmissible 


to  change  a  simple  unqualified 
indorsement 2566 

Partial  payment  made  by  one  debtor 
on  a  note,  will  not  suspend 
running  statute  of  limitations,  2568 

Partner  holding  notes  he  was  bound 
to   apply  to   firm's   liabilities, 
fraudulently  converted  them  .     2678 
lent     money    to     his    firm 


taking  a  note  therefor  signed 

by  himself  and  partners      .     .     2536 

Partnership  paper  given  with  bad 

faith  . 2785 

Party  authorized  to  sell  property,  in 
absence  of  any  express  limita- 
tion of  his  powers  .  .  2643-2647 

knowing     signature     to    a 

promissory  note  to  be  forged,     2569 

purchasing    paper    beyond 

the  jurisdiction 2679 

taking  note,  with  notice  of 


fraud 2601 

Patent  right  notes  must  be  stated  to 

be  such  under  laws  of  Ohio  .  2808 
Payable  on  a  day  named,  "  or  be- 


554 


INDEX  TO   CASES. 


PARAGRAPH. 

fore,  if  made  out  sale  of  J.  B. 
Drake's  horse,  fork  and  hay 
carrier  with  use "  .  .  .  .  2762 

Payable  on  or   before  six  months 

from  date 2772 

Payee  of  a  note  inducing  another 
to  indorse  it  by  creating  a  sec- 
ond note 2779 

Payee's  agent  filled  up  blank  and 
altered  note,  by  direction  of 
principal,  unknown  to  the 
surety 2541 

Paying  a  forged  note  supposing  his 

signature  to  be  genuine      .     .     2771 

Payment  of  a  note  in  full  by  in- 
dorser  who  left  it  with  a  bank 
which  commenced  suit  thereon, 
2853,  2854 

.  of  a  note  made  by  partners 

is  received  by  an  agent  in  Con- 
federate currency  .  .  2734,  2735 

.  of  a  note,  without  showing 
that  the  receiver  of  the  money 
has  the  note 2512 

.  of  note  made  in  this  country 
must  be  made  in  money  of  this 
country 2832 

— —  pleaded  for  goods  sold  by  a 
note  which  was  given  to  the 
plaintiff 2842 

Payor  of  a  note  conveys  land  to 

holder,  by  way  of  security      .     2537 

Person,  possessed  of  ordinary  fac- 
ulties and  can  read  and  write, 
signs  a  note  without  reading  it,  2553 

— —  who  negligently  signs  and 
delivers  to  another  a  note  con- 
taining blanks 2556 

— • who    receives    two    notes 

upon  an  agreement  to  release 
a  demand  upon  their  payment 
at  maturity,  discounted  one  of 
them 2644 

^— —  with  whom  a  note  is  left  for 
collection  is  the  agent  of  the 
holder 2685,  2686 

Petition  against  several  makers  of 
a  joint  and  several  note  more 
than  fifteen  years  past  due  .  .  2558 

Plaintiff  and  defendant  indorsed  a 
note  whereof  M.  was  payee. 
Makers  became  bankrupt  .  .  2759 

.  permitted   to   prove    state- 

ment of  the  deceased  made 
soon  after  date  of  note  .  .  .  2913 

Plaintiffs,  in  good  faith,  secured 
from  payee,  two  notes  in  ex- 
change for  one  made  by  de- 
fendant   2666 

Pleaded  want  of  notice  of  protest, 


PARAGRAPH. 

but   produced   no  affidavit   in 
support  of  such  plea      .     .     .     2831 

Pledge  or  sale  of  a  negotiable  in- 
strument   2865 

Point  in  an  action  on  lost  note  .     .     266£ 

Possession  of  a  note  is  pritna  facie 
evidence  that  the  holder  is 
owner  thereof 2464 

Possessor  has  no  better,  or  other 
title  to  the  proceeds  arising 
from  sale  of  note,  than  to  the 
paper 2628 

Power  of  municipal  corporation  to 

issue  commercial  paper       .     .     2488 

Precedent  debt  considered  as  a  suf- 
ficient consideration  for  trans- 
fer of  a  note 2636- 

President  and  treasurer  of  local 
board  of  trustees  certified  to 
having  certain  number  of  dol- 
lars belonging  to  the  insurance 
company 2524 

indorsing  a  note  at  its  in- 
ception and  before  its  delivery 

in  alleged  approval,  etc.     .     .     2730- 
Presumption  as  to  indorsements  on 

negotiable  paper 2511 

of  a  want  of  notice  of  any 

defence 2681 

Pretence  that  the  note  was  not  in- 
tended to  be  a  promissory  note,  2485- 

Principal  in  a  note  borrows  money 
to  pay  it  and  delivers  note  to 
the  lender  of  the  money  un- 
known to  indorser  ....  2502 

Prior  equities  of  antecedent  parties 

to  negotiable  paper  ....  2557 

Procuring  an  assignment  of  a  note 
on  the  promise  of  payment  by 
defendant 2882" 

Promise  in  writing  to  pay  on  a  day 
certain  to  A.  B.,  or  order,  in 
cash  or  goods 284O 

to   pay   a   note   to   holder 

which  is  not  indorsed    .     .     .     2841 

to  pay  at  a  specified  place 

is  not  a  promise  to  pay  gener- 
ally  2860 

to   pay  a   sum   of  money 

when  a  railroad  shall  be  built,     2767 

to  pay  money  for  articles  il- 
legally kept  for  sale  .  .  .  2852" 

Promisor  issued  his  note  under 

fraudulent  circumstances  .  .  2562 

Proof  that  consideration  of  note  was 

unlawful  sale  of  liquors  .  .  2576- 

Protested  draft  is  not  an  obligation 
within  the  meaning  of  the  Act 
of  1 6th  of  April,  1850  .  .  .  2531 

note  held  by  a  bank  cred- 


INDEX  TO   CASES. 


555 


PARAGRAPH. 

ited  with  deposits  of  the  debtor, 
2810-2812 

Protest  of  the  non-payment  of  note 

be  premature 2888 

Purchaser  of  a  mortgage  from  the 
assignee  of  a  mortgage  is  put 
upon  inquiry  as  to  vendor's 
title .  ,  2885 


of  a  note  from  payee  before 

it  is  due,  but  after  the  payee 
has  executed  to  payor  a  release, 

of  negotiable  paper  is  not 

put   upon   inquiry  that  payee 
sells  liquors 

—  of  paper  for  value,  without 

notice 2677, 

of  paper,  through  a  broker, 


is  not  a  lender  of  money 

Purchasing  a  note  that  is  in  the 
hands  of  another  .... 

Question  as  to  liability  of  indorser 
of  a  note 

— — —  of  pleading  must  be  deter- 
mined according  to  the  course 
of  practice  in  this  (Ind.)  state, 

Receiving  a  covenant  from  payee  of 
a  note  that  the  sum  for  it  is  due, 

Renewal  note  delivered  but  not 
duly  accepted 

— ^^—  note  given,  with  under- 
standing that  the  original  note 
shall  be  surrendered  .  .  . 

— — —  notes  were  received  and 
discounted  as  shown  on  the 
books  of  the  plaintiff  .  . 

— —  of  a  matured  note  executed 
by  his  decedent  

Rent  note  being  made  payable  to 
bearer 

Requiring  notes  given  for  patent 
rights,  to  show  it  .... 

Retaining  bond  upon  a  new  con- 
tract without  consent  of  owner 
of  bond  

Return  of  note  to  original  indorser, 
by  the  holder  writing  his  name 
under  previous  indorser  and  de- 
livering to  him  the  note,  etc., 

Revenue  stamp  affixed  to  a  note  or 
a  mortgage  not  required  in 
State  courts  to  perfect  evidence, 

Right  of  creditor  having  two  de- 
mands against  his  debtor,  ap- 
plies payment  received  .  . 

Rule  which  would  require  maker 
of  a  note  to  act  after  its  ma- 
turity, and  before  payment  . 

Sale  and  delivery  of  a  note  with 
indorsement  thereon  .  .  . 

Second   indorsee,  who   acquires   a 


2519 

2554 
2678 
2680 
2605 

2727 

2711 

2781 
2801 

2617 

2642 
2878 
2575 
2719 

2481 

2728 
2497 
2912 

2732 
2893 


PARAGRAPH. 

note  before  it  is  due,  for  value, 
2707,2708 

Signature  changed  by  signer  from 

G.,  to  G.,  agent 2855 

Signer  of  an  obligation  describing 

himself  as  principal  ....     271& 

Signing  a  note  on  a  promise  to  use 

it  in  taking  the  former  note,  etc.,     2631 

Situation  of  a  person,  to  whom 
money  is  paid  by  mistake  on  a 
forged  note 2775- 

Solidary  debtor  on  a  note  in  which 
is  written  "we  promise  in 
sotido" 2476- 

Stamps  attached  to  note,  after  de- 
livery by  the  holder  thereof  .  36501 

Statement  in  note  that  it  was  given 

for  money  loaned     ....     2480 

Statute  (of  Conn.)  provides  that  a 
note  payable  on  demand,  which 
remains  unpaid  four  months    .     2719 
of  limitations  begins  to  run 


from  the  date 2467 

Stipulation  in  note  to  pay  costs  of 
collecting,  including  reason- 
able attorney  fees  ....  2775 

Subsequent  indorsement  does  not 
make  indorser  jointly  liable 
with  principal  .  .  .  2787, 2788 

Sued  on  note  transferred  as  collat- 
eral security  for  money  loaned 
before  due 2529- 

Surety  contracts  to  pay  the  note, 
while  the  guarantor  undertakes 
to  pay  upon  conditions  .  2613-2616 

Surety  is  not  discharged  by  a  con- 
tract between  his  principal  and 
their  common  obligee  .  .  .  2689 

Suit  against  the  administrator  of  a 

deceased  joint  maker  of  a  note,     2465 
by  the  assignee  against  the 


assignor  of  a  note 

on  instrument  "12  months 


from   the    26th  June,   1873,  I 

(defendant)    will    pay    J.    C. 

(plaintiff)  $90,"  etc.      .     .     . 
Taking  a  note  as  collateral  security 

for  a  debt  then  created  . 
a   note   for  an  antecedent 


2867 


2839 
2590 

2818 


debt 

Tearing  a  note  so  as  to  remand  con- 
ditions   2494 

Testimony  that  such  person  was  not 

an  agent 2629 

Time  given  by  the  holder  to  the 

maker 2888 

in  which  a  note  secured  by 

chattel  mortgage  must  be  paid,  2758 
of  receiving  securities,  the 

receiver  knew  that  P.  &  Co. 

were  insolvent     ,  ,     28961 


556 


INDEX  TO   CASES. 


PARAGRAPH. 

Time  within  which  it  is  neces- 
sary to  present  for  payment  a 
note,  payable  on  demand  .  .  2877 

Title  to  negotiable  paper  cannot  be 
defeated  by  proof  of  negli- 
gence, etc. 2511 

Three  notes,  made  to  lessee  payable 
to  the  lessor  at  different  dates, 
etc. 2530 

Through  fraud,  A.  obtained  note 
from  B.  payable  to  order  of  C., 
forged  indorsement  of  C.  and 
discounted  it 2753 

Took  the  individual  note  of  B.,  on 

account  of  goods 2721 

Transfer  of  a  note  before  the  last 

day  of  grace 2484 

of  note  payable  to  bearer 

without  consideration  .  .  .  2604 

-^—  of  title  in  the  note  without 

assumption  of  liability  .  .  .  2578 

Transferable  quality  of  a  note    .     .     2499 

Two  notes  given  a  bank,  one  as  se- 
curity for  the  other  ....  2776 

-^— —  or  more  notes,  secured  by  a 

single  mortgage 2523 

Unconditional  note  cannot  be 
changed  into  condition  obliga- 
tion by  parol 2600 

Upon  compliance  with  other  condi- 
tions of  the  note 2612 

Usually  formed  note  with  coupon 

notes  attached  ....  2639-2641 

Usurious  note  made  in  New  York 
by  citizens  thereof  and  dis- 
counted in  Canada  ....  2653 

Vendee  gives  his  note  for  the  price 
of  a  thing  which  the  vendor 
assumed  to  sell  .  .  .  .  .  2503 

Waiver  of  demand  and  notice  upon 

a  note  after  or  before  maturity,  2750 

What  evidence  of  a  debt  is  there  in 
a  note  ?  There  may  have  been 
no  consideration 2889 

When  a  defence  of  a  want  of  con- 
sideration is  pleaded  .  .  .  2882 

— —  a  demand  of  payment  is  a 

day  or  two  late  .  .  .  2797,2798 

— — —  a  maker  of  a  note  carelessly 

leaves  room  for  alteration  .  2820 

a  note,  based  upon  insuffi- 
cient consideration,  has  been 
obtained  from  a  person  intoxi- 
cated . 2754 

^— —  a  note  is  due  and  payable 

immediately 2774 

— —  a  note  is  given  in  consider- 
ation of  services,  already  ren- 
dered the  maker  and  paid  for,  2768 

a  note,  taken  in  renewal  of 


PARAGRAPH. 

the  balance  due  on  another  se- 
cured by  a  deed  of  trust     .     .     2778 

When  a  person  assumes  the  pay- 
ment of  other  parties'  indebted- 
ness   2857, 2858 

— — —  burden  of  proof  is  upon  the 

plaintiff 2868 

^— —  indorser  of  a  note  lives  in  a 
different  place  from  that  in 
which  demand  is  to  be 
made 2880,2881 

— —  made  payable  to  the  order 
of  the  maker  has  no  validity 
until  indorsed  and  transferred 
by  him 2764 

— —  notes  are  placed  upon  the 
footing  of  foreign  bills  of  ex- 
change   2815 

note  is  executed  by  married 

woman  authorized  by  her  hus- 
band, etc 2806 

note   is   made   payable   to 

order  of  maker  is  considered 
as  if  payable  to  bearer     .  2664,  2665 
on  the  sale  of  a  note,  it  is 


represented  as  business  paper  . 
-,  upon  the  maturity  of  a  note 


2766 


given  for  a  usurious  loan  as  an 
extension  borrower  gives  an- 
other note  2897-2900 

Where  a  failure  to  demand  or  as- 
sert a  title  to  a  note,  was  a 
ratification  of  the  sale  .  .  .  3652 

a  note  given  for  borrowed 

money  had  been  lost     .     .     .     2632 

a  note  is  given  without  con- 
sideration   2548 

a  note,  though  negotiable, 


is  payable  to  order,  and  unin- 
dorsed,  is  accidently  burned  . 
—  a  note  was  given  for  suffi- 


2500 
2591 


cient  consideration 

—  a  note  was  taken  instead  of 

cash 2649 

—  a  payment  on  a  note  was 

no  defence 2482 

a  person  becomes  surety  for, 

and  not  co-surety  ....  2755 
a  promissory  note  is  signed 

by   two   one  being  surety  for 

the  other 2571 

—  a  transfer   conveys   a   title 
between   the    parties     .     .     .     2638 

—  a  woman  assigns  by  delivery 
a  note  payable  to  her,  and  af- 
terwards marries  the  maker     .     2872 

—  defendant  denies  making  a 

note  and  alleges  an  alteration,     2532 

—  genuineness  of  signature  is 

in  question 2914 

—  it  is  claimed  by  a  party  de- 


INDEX  TO   CASES. 


557 


PARAGRAPH. 

fendant  that  the  date  of  the 

note  in  suit  is  a  mistake  .  .  2551 

Where  it  is  shown  that  the  vendor 

of  a  note  was  not  its  owner  .  2863 

maker  is  dead  and  the  payee 

of  the  note  one  of  his  execu- 
tors   2909 

negotiable  note,  obtained  by 

fraud,  has  been  transferred  to 

third  party 2672 

no  one  is  a  bonafide  holder, 

without  notice 2547 

one  cannot  be  held  as  maker 

of  the  note  ....  2610,  2611 

.  .  the  holder  of  an  instrument 
is  personally  chargeable  with 
fraud  in  procuring  it  ...  2705 

^— — —  the  maker  and  surety  as- 
sented to  and  ratified  an  alter- 
ation of  a  note 2769 

— —  there  had  been  no  notice  of 

non-payment  been  given  .  .  2883 

.  the  validity  of  an  instru- 

ment is  destroyed  ....  2706 

Wherein  all  set-offs  in  favor  of 

maker  of  a  note  is  avoided  .  2749 

Widow  giving  her  own  note  for  a 
debt  of  the  deceased  husband 
which  is  outlawed  ....  2518 

Widow's  note  given  to  creditor  of 
deceased  husband,  who  does 
not  take  it  in  payment  of  debt,  2526 

Written  evidence  of  debt,  made 

payable  in  current  funds,  2515,  2516 

— —  in  note  "  this  note  is  to  be 
paid  off  within  three  years 
from  date" 2493 

PROTEST,  Page  403. 

Accommodation  indorser  wrote  that 
he  would  "  waive  protest." 
Afterwards  he  indorsed  note 
for  collection 2944 

Action  by  a  second  against  first  in- 
dorser    2927-2930 

Banker  or  agent  to  whom  paper  has 
been  transmitted  for  obtaining 
acceptance  or  payment  .  2939,  2940 

Description  of  maker  in  the  pro- 
test incorrect 2920 

Failure,  on  part  of  notary,  to  prepay 

postage  on  notice  ....  2922 

Guaranty,  alleged  to  have  been 
given  to  bank  before  maturity 
of  note 2946 

Had  postage  on  protest  been  paid 

by  notary 2922 

Holder  and  party  to  whom  notice 
is  to  be  given  reside  at  different 
places 2938 

— —  of  dishonored  paper    may 


PARAGRAPH. 

give     notice    directly    to    all 
prior  parties    ....     2937-29401 

Husband  being  universal  legatee  of 

his  wife  indorsed  her  note  .     .     2917 

Incumbent  upon  party  seeking  to 
charge  an  indorser,  to  prove 
legal  notice  ....  2937-2940" 

Indorsement  on  note,  "  I  hereby 
guarantee  payment  of  the 
within  note  without  protest,"  2945 

Indorser    went    into    Confederate 

lines  before  note  was  due  .     .     2931 

Intention  of  all  parties  to  an  ac- 
commodation bill  was  that  it 
should  be  paid  by  last  indorser,  2948" 

Letter  addressed  by  holders  of  note 

to   indorser 2930 

Neither  protest,  nor  notice  to  surety 
of  non-payment'  by  his  princi- 
pal, is  necessary  .  .  .  2947 

Non-exhibition  of  note  to  the  maker 

at  the  time  of  protest     .     .     .     2919 

Notary  knows  of  indorser's  death 

and   his   representatives     .     .     2950 

Notary's  notice  sent  to  nearest  post 

office  or  place  of  residence     .     295$ 

Note  dated  at  Montreal,  payable  at 
Albany,  N.  Y.  protest  mailed 
at  Albany  addressed  to  indor- 
ser at  Montreal 2922 

Notice  address  to  female  beginning 

"  Sir  "  is  bad 2934 

of  dishonor  of  a  note,  where 

parties  live  in  different  places,     2934 

of   dishonor    need    not    be 

given  by  notary 2936 

to  executor  of  the  non-pay- 


ment of  a  note  indorsed  by  his 
testator  .  .  .  .  -  .  .  2949 

Omission  of  notary  to  state  that 
protest  was  made  in  the  fore- 
noon of  the  day  of  protest  .  2918 

Ordinary  and  reasonable  diligence 

required 2925 

Payment  demanded  at  office  of  a 
party  who  claimed  to  have  re- 
moved therefrom  previous  to 
service  of  notice 

Promise  to  pay  protested  bill,  of 
which  no  notice  had  been 
given 2921 

Protested  draft  is  not  an  obligation 
within  the  meaning  of  the  pro- 
vision of  the  Act  of  i6th  April, 
1850 

Protest  made  on  25th  July,  but  no- 
tice of  protest  was  dated  July 
a6th,  saying  "  this  day  pre- 
sented"   2954 

Proved  that  the  indorser  usually  re- 


2927 


2933 


658 


INDEX  TO   CASES. 


2952 


2943 


2955 
2941 


2950 


PARAGRAPH, 

ceived  his  letters  at  the  West 
Townsend  post  office     .     .     .     2955 

Record  of  proceedings  of  a  notary 
on  protest  of  a  note  .... 

Seasonable  notice  of  non-payment 
of  note  sent  to  indorser  where 
he  had  formerly  long  resided, 

Sufficient  to  address  indorser  by 
mail  at  the  town  in  which  he 
resides 2955 

There  must  be  evidence  of  diligence 

of  a  protest 2935 

Two  notes,  payable  at  any  bank  in 
Boston,  were  presented  at  two 
of  them  for  payment  .  .  . 

Waive  presentment  for  payment, 
protest,  and  notice  .... 

When  an  indorser  of  a  note  dies 
before  the  note  matures  .  . 

-  note  waives  notice  of  non- 
payment      2942 

-  notice  of  protest  was  insuffi- 
cient      2932 

Where  indorser  is  bound  to  pay  a 

non-protested  note  ....  2917 

Whether  sufficient  diligence  has 

been  shown 2926 

PURCHASER,  Page  409. 

Conveying  individual  half  of  land 
with  option  of  purchase  of 
other  half 

Creditor  making  advances  under 
security  of  a  deed  of  trust  .  . 

-  taking  a  chose  in  action  as 
collateral  security  for  a  preexist- 
ing debt 

Person  to  become  a  bona  fide  gur- 

chaser 

Purchaser   of  land  with  notice  of 

outstanding  equities  .... 
Purchasers  at  public  judicial   sale 

or  under  a  quit-claim  deed 
Purchasing    and   paying    for   land 

under  a  verbal  agreement  as  to 

changes  of  title,  etc 

Unless  actual  possession  of  goods 

sold  has  been  delivered     .     . 
Where    no   title   is  invested    in  a 

party  in  whose  name  deed  was 

made 


2959 
2958 

2962 
2960 
2957 
2956 

2963 
2951 

2963 


RECEIPTS,  Page  410. 


Instrument  given  by  payee  of  a  lost 
note,  upon  the  execution  of  an- 
other note  . 2964 

Receipt  of  bank  check  as  payment 

of  antecedent  debt  ....  2966 

•  under  seal,  given  by  obligee 

to  joint  obligor 2967 


PARAGRAPH. 
Receipts    may     be    explained    or 

contradicted  by  parpl  evidence,     2965 

RECEIVER,  Page  310. 
Creditor's   bill   charges  the  debtor 

who  has  choses  in  action,  etc.,    2969 
Equitable  action  by  a  creditor  for 

an  insolvent  corporation     .     .     2973 
Receiver  is  not  personally  liable  for 

torts  of  his  employees     .     .     .     2971 
of  a  bank,  appointed  under 

General  Stat.  , 2970 

of     insurance     company, 


holding    notes    given    to   the 

company 2968 

Sale   of  property  under  execution 

without  leave  of  the  court  .     .     2972 

REDEMPTION,  Page  411. 
Judgment  debtor's  right  of  redemp- 
tion of  real  estate  sold  by  order 
of  foreclosure 2974 

REPLEVIN,  Page  41 1. 

Consignee  pledging  goods  for  a 

loan  2977-2980 

Lender  gave  property  bond  and  re- 
tained goods 2978 

No  previous  demand  upon  a  bona 
fide  purchaser  of  a  chattel  from 
one  who  had  no  authority  to 
sell  it 2975 

Refusal  to  accept  payment  or  per- 
formance   2979 

Sheriff  selling  goods  covered  by 

writ  of  replevin 2976 

There  is  no  set-off  in  replevin   .     .     2980 

REPRESENTATIONS,  Page  412. 
Damages  not  receivable  for  loss  of 

speculative  profits     ....     2981 
Money  paid  on  strength  of  mistaken 

representations 2981 

RETROSPECTIVE,  Page  412. 
Allowed  one  year  from  time  when 

act  would  take  effect     ...     2982 
Amended  statute  of  limitations  so 

as  to  run  against  Canadian  as 

well  as  domestic  creditors  .     .     2982 

SALES,  Page  413. 

Acceptance  by  vendee  of  articles 
manufactured  for  him  under 
an  executory  contract  .  .  .  2998 

of  goods,  through  delay  in 

reporting  any  defects  thereof,  3012 

Actual  delivery  of  immovables  in 
La.  is  not  essential  to  validity 
of  sale 2999 

Attorney    and    judgment    creditor 


INDEX  TO   CASES. 


559 


PARAGRAPH. 

agreed  to  buy  for  debtor  goods 
of  his  to  be  sold  by  sheriff  .     .     3004 

Bailee's  sale  of  goods  is  good  against 

an  execution  creditor     .     .     .     3003 

Both   parties  should  consent  to  a 

sale 2987 

Buying   property   with  knowledge 

that  title  is  in  dispute    .     .     .     3015 

Consent  of  former  owner  need  not 

be  expressly  given    ....     2987 

Contract  requiring  goods  to  be  paid 

for  on  delivery 3021 

Creditor  who  has  bought  certain 
movable  goods  from  his  debtor 
crediting  the  same  on  his  ac- 
count   3007 

««  Dealer  "  is  one  who  makes  suc- 
cessive sales  as  a  business  .  .  2983 

Delivery  not  complete  until  per- 
formance of  condition  .  .  .  3023 

^—  of  goods  by  seller  to  carrier, 

pursuant  to  directions  of  buyer,     3014 

Finding  the  sale  was  upon  condi- 
tion broken 3001 

Goods  sold  to  be  paid  for  in  cash 

or  notes  on  delivery  ....     3022 

Immediate  delivery  of  goods  when 

sold 3005 

Judicial  sales  attached  on  jurisdic- 

tional  grounds 2995 

Parties  considering  sale  complete,     2986 

Party  knowing  the  pecuniary  con- 
dition of  a  creditor  ....  3018 

Patent  defects  of  an  animal  when 

sold 3016 

Personal  property  sold  by  debtor, 
must  be  a  real  permanent  de- 
livery and  change  of  possession,  3009 

Person  intrusted  with,  and  in  pos- 
session of,  any  bill  of  lading, 
etc 2996,2997 

Possession  of  personal  property  is 

not  title 3002 

Pretended    sale    by    an    insolvent 

debtor  to  one  of  his  creditors,     3013 

Property  which  owner  has  leased 

is  sold  by  sheriff 2989 

Purchaser  of  a  chattel  takes  it  subject 
to  what  may  be  imformalities 
in  the  title 2984 

Receipt  acknowledging  it  is  given 

for  personal  property     .     .     .     2994 

Representations  by  vendor,  of  the 

quality  of  thing  sold     .     .     .     3011 

Sale  of  goods  not  to  vest  until  pur- 
chase money  is  paid ....  3010 

.  of  lottery  tickets  held  com- 

plete on  selection  of  tickets     .     3000 

under  the  guise  of  a  renting 

of  personal  property     .     .     .     2985 

Seller,  on  discovering  a  buyer  is 


PARAGRAPH. 

insolvent  before  their  delivery 

in  person 3019 

Several  articles  bought  at  same  time 

for  different  prices    ....     3013 

Valid  sale  may  be  made  by  virtue 

of  power  conferred     .     .    2990,  2991 

Vendor   not   being  owner  of   the 

goods  he  sells 2990 

of  an  article  sold  for  particu- 
lar purpose  does  not  impliedly 

warrant  it 3008 

of  goods  and  chattels  who 


is  induced  by  fraudulent  means 

to  part  with  his  property    .     .     2988 

When  a  complete  title  vests  in  pur- 
chaser    3022 

everything  the  seller  has  to 

do  with  the  goods  is  complete,     3020 

an  expressed  consideration 

of  a  transfer  does  not  exist     .     3017 
•  sale  of  goods  made  in  good 


faith  with  warranty  of  qual- 
ity   2992,2993 

Where  sale  has  been  so  completed 
that  vendee  has  bought  and  re- 
ceived goods 3006 

SATISFACTION  OR  RELEASE, 
Page  417. 

After  satisfaction  of  a  judgment  in 

favor  of  plaintiff 3024 

Release,  even  sealed,  cannot  be  set 

up  in  equity,  etc 3025 

Satisfaction  by  one  joint  tort  feasor 
is  a  bar  to  an  action  against 
another 3026 

SAVINGS  BANKS,  Page  417. 

Although  earnings  have  not  been. 

actually  received  ....  3030 

Assessments  made  by  trustees  as 

deposits  in  the  bank  .  .  .  3034 

Assets  of  a  bank  insufficient  to  pay 

its  debts 3045 

Bank  itself  and  the  receiver  can  sue 

and  be  sued 3038 

paid  a  deposit  held  "  in 

trust  for  C.  B.  plaintiff's  in- 
testate"   3048 

Commercial  paper  discounted  by 

savings  bank 3037 

Declaring  and  crediting  excessive 

interests 3030 

Depositor  bound  by  conditions 

stated  in  deposit  book  .  .  .  3027 

Discharge  in  bankruptcy  does  not 
release  a  trustee  debtor  of  an 
insolvent  savings  bank  .  .  .  3033 

Dividend  declared  and  credited  to 

depositor 3031 


560 


INDEX  TO   CASES. 


PARAGRAPH. 

Does  not  convert  a  deposit  into  an 

unauthorized  loan  ....  3029 

Loss  occasioned  by  failure  of  a 

trustee 3044 

Order  of  the  payment  of  the  debts 

1         of  the  bank  by  trustees  .     .     .     3033 

Responsibility  of  savings  banks  for 

deposit  in  lost  deposit  book  .  3027 

Seal  on  a  mortgage  is  presumptive 

evidence  of  a  consideration  .  3036 

Selling  stocks  held  as  security  for 

a  loan 3039,  3040 

Sole  and  complete  rule  for  the  ex- 
istence of  saving  banks  .  .  3028 

Termination  of  rights  of  action 
against  trustees  of  savings 
bank 3028 

Trustee  of  a  savings  bank  cannot 
become  a  surety  or  obligor  to 
his  bank 3035 

cannot   avoid  liability  be- 
cause  of  the   manner  of  vot- 
ing         3030-3034 

Trustees  are  principals  and  agents 

of  bank 3041 

causing  loss  or  damage  to 

bank 3041-3047 

of  a  S.  B.  personally  liable 

for  deficiency 3036 

SET-OFF,  Page  422. 
Action  arising  upon  a  contract,  any 
other   cause   of  action  arising 
also  upon  contract     ....     3073 

on  a  certificate  of  deposit 

in  ordinary  form  issued  by  a 
bank 3081 

Any  set-off  to  a  note  which  would 
be  good  between  original 
parties 3069 

Cause  of  action  founded  upon  an 

implied  contract 3065 

Checks  drawn  in  favor  of  defendant 
which  were  not  delivered  to 
bank 3068 

Claim  arising  from  a  bonus  paid  on 

an  usurious  claim 3072 

i  brought  by  B.  against  A. 

after  an  action  had  been 
brought  against  them  by  A.  .  3078 

.  that  there  was  no  such 

delivery  of  goods  burned  as  to 
constitute  vendor  a  bailee  .  .  3085 

Counterclaim  can  only  be  main- 
tained when  it  exists  in  favor 
of  all  defendants 3077 

Debt  or  demand  due  from  plaintiff 

to  principal  defendant  .  .  .  3060 

Demand  against  one  person.  Set- 
off  must  be  against  all  parties,  3061 

for  money  paid  as  a  set-off,     3050 


PARAGRAPH, 
Executor  or  administrator  selling, 

on  credit,  property  of  the  estate,  3063 
Legacy,  presently  payable  .  .  .  30591 
Mortgaging  property  deeded  in 

trust 3087 

Mortgagor  having  given  a  certifi- 
cate that  he  has  no  defence     .     3052 
Note   given  by  A.  to   B.,  and  not 
yet  due,  cannot,  in  equity,  be 
set-off  against  note  given  by  B. 

to  A 3074 

——^—  under  seal  for  $iog  trans- 
ferred, with  knowledge  #58.83, 
showing  on  its  face  that  it 


was  given  for  a  consideration 
different  from  plaintiff's  claim,  3071 

Ordering  one  judgment  to  be  set 

off  against  another  ....  3075 

Planter  contracting  by  parol  to  de- 
liver part  of  his  cotton  crop  to 
pay  advances,  dies  before  any 
cotton  is  delivered  ....  3085 

Plea  of  set-off,  damages  arising 
from  the  non  performance  of  a 
contract 3075 

of  set-off  setting  up  a  prom- 
ise good  in  parol  by  the  com- 
mon law 3066 

Purchasing  a  claim,  pending  an  ac- 
tion upon  the  claim  ....  3078 

Resisting  payment  for  goods  by  al- 
leging the  sale  was  in  fraud 
of  creditors  of  seller  ....  3088 

Right  of  set-off  in  an  action  is  gov- 
erned by  law  of  the  place 
where  action  is  brought  .  .  3056- 

of  set-off  under  the  Federal 

Bankrupt  Act 3080s 

Selling  more  wheat  than  is  in  ware- 
house, giving  purchaser  a  ware- 
house receipt  for  all  sold  .  .  3089- 

Set-off  against  notes  given  in  pay- 
ment for  land,  a  part  of  which 
was  taken  from  buyer  legally,  3079" 

may  be  pleaded  in  an  ac- 
tion brought  by  receiver  of  an 
insolvent  N.  B 3057 

to  the  maker  of  a  note,  who 

was  principal,  arising  after 
maturity 3070- 

Setting  aside  a  sheriff  sale  of  per- 
sonal property 3093" 

up  warranty  of  equality  and 

failure  of  consideration  .  .  .  3090 

Sheriff,  on  his  own  authority,  dis- 
tributing money  levied  under 
several  executions  before  re- 
turn day  of  writ 3094 

Stipulation  in  contract  was,  unless 
written  notice  was  given  on 


INDEX  TO   CASES. 


561 


PARAGRAPH. 

July  1st,  failure  of  considera- 
tion should  not  be  pleaded  .  3084 

Stockholder  indebted  to  an  insol- 
vent corporation  for  unpaid 
shares 3064 

Subsequent  assignee  may  avail 
himself  of  a  certificate  of  "  no 
defence " 3053 

Sufficient   evidence  of   delivery  of 

goods  sold 3094 

Suit  to  collect  purchase  money,  de- 
fendant offered  as  a  set-off  his 
claim  against  his  deceased 
partner 3062 

Surviving  partner  buys  from  ad- 
ministrator interest  of  his  de- 
ceased partner 3062 

partners  having  a  subsist- 
ing right  at  the  time  action 
was  commenced 3067 

Taking   collaterals   subject   to   the 

equities 3054 

Vendor   who    is    ignorant   of    the 

vices  of  things  sold    ....     3092 

When  a  debt  against  decedent  can- 
not be  made  a  set-off  .  .  .  3063 

a  receiver  of  an  insolvent 

bank  has  no  power  to  allow  a 
set-off  against  debt  owing  the 
bank 3082 

— — —  bank  can  retain  deposits  as 

a  set-off 3058 

Where    debts   are    not   mutual   or 

set-offs 3051 

demand   for   damages  is  a 

proper  set-off 3055 

goods  are   at   the   risk  of 

the  buyer 3092 

•  goods    do    not   correspond 

with  warranty 3091 

-^—^—  vendee  in  a  contract  of  sale 

refuses  to  receive  goods  sold   .     3086 

SIGNATURE,  Page  428. 

Action  on  a  note  against  alleged 
makers  who  deny  their  signa- 
ture . 3100 

Admitted  the  signature  of  firm  by 

one  of  its  members  ....  3101 

Checks  forged  in  his  name  by  his 

clerk,  paid  by  his  bank  .  .  .  3097 

Dealer  with  a  bank  trusting  his 
clerk's  report  that  his  bank 
book  was  correct 3096 

Defendant  by  exception  admits  his 

signature 3096 

Failure  to  add  official  character  to 

signature 3102 

Genuineness  of  signature  to  indorse- 
ment of  note  ceases  to  be  pre- 
sumed, etc 3095 

36 


PARAGRAPH. 
Receipt  offered  as  standard  of 

comparison 3099 

Standards  of  comparison  used  by 

experts  upon  genuineness  of  a 

signature 3098 

Where  signature  to  bill  or  note  is 

denied 3100 

STATED  ACCOUNT,  Page  429. 

Balance  shown  in  an  account  and 

claimed  in  a  suit  ....  3105 

Burden  of  proof  is  on  the  party  im- 
pugning the  accuracy  of  the 
accounts 3103 

Stated  accounts  were  given  in  an 

answer  in  equity 3103 

Term  "open  account"  is  used  in 
contradiction  to  a  stated  ac- 
count   3105 

What  constitutes,  is  a  matter  of  evi- 
dence   3104 

STATUTE  OF  LIMITATIONS, 

Page  429. 
Acknowledgment  of  a   debt   to  a 

stranger 3125 

of  debt,  barred  by  S.  L.     .     3136 


Action  against  stockholder  of  a  bank 
that  failed  June  I,  1865, 
brought  Jan.  i,  1870  .  .  .  3138 

against  stockholder  to  en- 
force liability  where  all  stock 

has  been  paid  in 3166 

brought  against  trustee  of  a 

manufacturing  company     .     .     3165 

for  one-half  of  money  ex- 
pended in  purchasing  material 

to  build  a  house  jointly  .     .     .     3152 
shall    commence   when    a 


summons  is  delivered  to  the 
sheriff 3162 

Administrator  failing  to  sue  on,  or 

collect  a  note 3151 

A  payment  by  one  of  several  part- 
ners of  a  joint  note  revives  it  as 
to  the  others 3119 

Applies  to  future  transaction  only, 

except 3111 

At  the  time  a  right  of  action  ac- 
crues, there  is  no  one  in  being 
to  assert  it 3146 

Bankbills  that  ceased  to  circulate 
as  currency  prior  to  June  ist, 
1865 3155 

Bank  failed  in  Feb.,  1865.  In  June, 
1872,  creditors  filed  bill  in 
equity 3139 

Barring  suits  for  the  recovery  of 

real  estate 3140> 

Claim  that  in  an  action  for  money 

loaned  .  ,3123: 


562 


INDEX  TO   CASES. 


PARAGRAPH. 

Credit  upon  an  account  after  the 
cause  of  action  on  the  same  is 
barred  S.  L 3112 

Debt  acknowledged  by  personal 
representative  of  original  debtor, 
deceased 3168 

Debt  was  due  Oct.  6th,  1862;  suit 

brought  Oct.  6th,  1868  .  .  .  3129 

Delivery  of  summons  to  sheriff  did 
not  prevent  running  of  S.  L. 
3163,3164 

Drawer  of  a  check  having  no  funds 

at  the  time  in  bank  to  meet  it,  3170 

Foreign  corporation  sued  in  this 

State  cannot  avail  of  S.  L.  .  .  3167 

Fraud  which  must  have  been  dis- 
covered if  reasonable  diligence 
had  been  exercised  ....  3144 

Generally  limitation  laws  act  only 
upon  remedies  and  do  not  ex- 
tinguish rights 3156 

Holder  of  check  delays  for  six  years 

to  enforce  his  claim  ....  3171 

Indorsement,  in  handwriting  of 
debtor  not  signed  by  him,  of  a 
payment  of  part  of  note  .  .  3150 

Instrument  payable  at  bank  lodged 
with  the  bank  for  collection 
3160,3161 

«<  It  will  suit  my  convenience  to  ex- 
ecute my  note  for  the  balance 
due  for  rent,  etc."  ....  3145 

Lapse  of  six  years  is  not  a  bar  to  an 

action  to  recover  a  deposit  .  .  3169 

-  of  time  provided  by  a  S.  L., 
as  to  real  action  vests  perfect 
title  in  holder 2133 

Letter  from  defendant  stating,  "  in 
regard  to  settlement,  that  he 
was  ready  any  day,"  etc.  .  .  3132 

Letters  written  by  a  partner  recog- 
nizing the  existence  of  a  judg- 
rnent  against  the  firm  .  .  .  3142 

Mistake  of  fact  induced  by  attor- 
ney of  opposite  party  .  .  .  3154 

Money  loaned  on  verbal  promise  to 

pay  on  demand 3118 

Must  insist  on  S.  L.  as  a  bar  to  his 

answer 3128 

Non-resident  debtor  owning  attach- 
able real  estate  in  the  State 
wherein  cause  of  action  ac- 
crued   3117 

One  partner  cannot  deprive  the 
firm  of  the  bar  of  S.  L.  after 
dissolution  of  firm  ....  3137 

Partial  payment  of  debt  replied  to 

S.  L 3121 

Parties  to  a  contract  providing  by 
express  stipulation  for  shorter 
limitation,  etc 3141 


PARAGRAPH. 

Part  payment  of  consideration  of  a 
parol  promise  not  to  be  per- 
formed within  a  year  .  .  .  3108 

payment  on  a  bond  made  by 

the  administrator  of  one  of  the 

joint  makers 3115 

Payment  by  principal,  year  by  year 

of  interest 3124 

of  interest  on  a  note  by  the 

principal 3114 

Payments  by  treasurer  of  a  partner- 
ship from  partnership  funds  .  3120 

Presumption  that  a  bond  has  been 
paid  which  arises  after  a  lapse 
of  twenty  years 3126 

Promise  by  a  member  of  late  firm, 
made  after  dissolution  and  be- 
fore S.  L 3127 

"  he  would  see  his  brother 

and  would  pay  the  debt "  .  .  3106 

relied  on  to  avoid  statute  of 

limitation  made  to  an  attorney,  3106 

Questioned  whether  administrator 
of  an  estate  of  a  deceased  per- 
son can  in  any  way  revive  a 
debt 3149 

Receipt  for  nine  hundred  dollars, 
borrowed,  to  be  returned, 
,  "  when  called  for  "  .  .  .  .  3130 

Reduction  from  20  to  15  years  ap- 
plies to  causes  of  action  accru- 
ing after  passage  of  act  .  .  3134 

Removal  of  a  debtor,  without  in- 
forming his  creditor .  .  .  .  3130 

Residence  and  not  citizenship  is 
contemplated  in  statute  pre- 
scribing limitations  ....  3107 

Revival  of  a  debt  after  S.  L.  has 

debarred 3118 

Rule  of  common  law  is  limitation 
of  action  depends  on  the  law 
of  the  forum 3153 

Runs  against  an  infant  having  only 

color  of  title  to  land  ....  3110 

Statute  ceases  to  run  when  debtor 
becomes  a  non-resident,  but  re- 
vives on  his  demise  ....  3107 

of    Limitation   commence 

running  from  the  time  a  right 

of  action  is  discovered    .     .     .     3143 

of    Limitations    in    force 

where   the   remedy  is  sought, 
and   not   that   where   contract 

was  made 3109 

of  Limitations  of  loci  con- 


tractus  cannot  be  pleaded  in 
bar  in  foreign  jurisdiction  .     .     3153 
Statutes  begin  running  on  a  loan, 
receiving   therefor   no  written 
obligation 3118 


INDEX  TO   CASES. 


563 


PARAGRAPH. 

Statutory  bar  of  one  State  cannot  be 

pleaded  in  another  ....  3153 

Surety  is  not  barred  in  the  courts 

of  this  State 3156 

Time  runs  from  beginning  upon  all 
demand,  paper  not  excepted 
by  Stat.  Comp.  L.  1871,  (§ 
7151  Mich.) 3148 

When  two  separate  sums  are  re- 
ceived by  one  bond  ....  3157 

Where  a  course  of  action  is  created 

for  money  loaned  from  its  date  .  3130 

a  demand  is  necessary  to 

found  an  action  upon  .  .  .  3147 

.  a  person  is  kept  in  igno- 

rance of  his  cause  of  action 
through  fraudulent  means  .  .  3131 

•  one  practices  fraud  to  the 

injury  of  another,  the  subse- 
quent concealment  of  it  .  .  3131 

• S.  L.  has  begun  to  run  dur- 
ing life  of  the  devisor  .  .  .  3113 

Will  not  bar  suit  on  coupons,  unless 
time  is  sufficient  to  bar  rent  on 
bond  also 3158 

STATUTES,  Page  436. 

Construction  put  upon  statutes  by 
public  officers  whose  duty  it  is 
to  obey 3172 

STOCK  AND  STOCKHOLDERS, 
Page  436. 

Absence  of  proof  that  parties  were 
merely  speculating  upon  the 
fluctuation  in  price  ....  3175 

Allotment    by    directors    to    them- 
selves of  shares  at  forty  per 
cent,  discount 3185 

Assignment  of  a  certificate  is  only 

an  equitable  transfer      .     .     .     3173 

By  act,  all  stockholders  are  severally 
and  individually  liable  to  credi- 
tors  3177 

Calling    directors    to    account   for 

losses     ......     3183,  3184 

Charter  providing  that  so  long  as  a 
stockholder  remained  indebted 
to  'he  bank,  etc 3181 

Elementary  rule  of  construction  as 

regards  written  instruments     .     3176 

Facts  and  circumstances  surround- 
ing the  making  of  a  contract  .  3176 

Failure  to  pay  for  the  shares  sub- 
scribed for  ......  3180 

If  any  stockholder  is  required  to 
pay  debt  due  by  the  corpora- 
tion ...  - 3177 

Manufacturing   company    gave    its 

notes  for  goods  bought  .     .     .     3186 


PARAGRAPH. 

Option  to  buy  a  certain  number  of 

shares 3195 

Organization  which  has  attempted 
irregularly  to  create  itself  a 
corporation 3179 

Person  is  presumed  to  be  owner  of 
stock  when  his  name  appears 
on  the  books 3178 

Pledgee  had  not  the  stock  during 

the  pledge 3174 

Stock  book  is  evidence  of  the  re- 
lations of  the  corporation  and 
corporators 3173 

Stockholder  who  has  not  paid  up 

his  subscription 3177 

Suit  for  the  collection  of  a  debt  due 
from  a  corporation  must  be 
brought  within  a  year  .  .  .  3186 

When  a  stockholder  was  not  per- 
sonally liable  for  the  debt  of 
his  company  ....  3186,  3187 

statute  does  not  make  indi- 
vidual stockholders  primarily 
liable  for  company's  debts  .  3182 

Without  intent  to  deliver  or  accept, 

but  simply  pay  the  difference,     3175 

Where  an  illegal  intent  will  not  be 

presumed 3175 

SUBROGATION,  Page   439. 

Guaranty  to  hold  bankers  harmless 

of  loss 3189 

to    secure    an    ascertained 


balance 3189 

Only  when  all  the  property  of  de- 
fendant has  been  applied  can 
the  guarantor  be  called  upon,  3189 

Settled  rule  of  equity  between 

debtor  and  creditor  ....  3189 

Surety  who  pays  the  debt  of  his 

principal 3190 

SUNDAY  CONTRACT  AND  SA-LES, 
Page  440. 

Action   based   upon   a    transaction 

tainted  with  illegality    .     .     .     3194 

Contract  to  hire  a  horse  on  Sunday 

for  business  purposes      .     .     .     3192 

Note  or  agreement  in  writing,  dated 

on  Sunday 3193 

Promissory  note  payable  to  order 
may  be  validly  made  on  Sun- 
day   .  3193_ 

Written  contract  made  on  Sunday, 

bearing  date  of  a  week  day     .     3191 

SURETIES  AND  SURETY,  Page  440. 
Action    between   sureties   for   con- 
tribution      3272 

for  contribution  by  a  surety 


564 


INDEX   TO   CASES. 


PARAGRAPH. 

against  one  of  several  co-sure- 
ties   3254 

Action  of  payee  against  estate  of 

deceased  co-surety    ....     3269 

on  a  bond  against  a  surety, 

judgment     having     been     ob- 
tained against  principal      .     .     3236 

.  on  a  note  payable  in  bank, 

wherein  judgment    by  default 
had  been  rendered   ....     3285 

Agreement  between  payee  and 
principal  of  a  note  for  exten- 
sion of  time 3239 

without     consideration    to 

give  time  to  a  debtor     .     .     .     3219 

Any  unauthorized  variation  in  an 
agreement  which  surety  has 
signed 3249 

Assignment  of  surety  for  the  benefit 

of  his  creditors 3269 

Assigning  personal  property,  as  se- 
curity, to  payee  by  maker,  3276-3280 

Banker's   lien   upon   all   securities 

deposited  with  him  ....     3204 

Bond  given  to  dissolve  plaintiff's 
attachment  conditioned  to  that 
plaintiff  may  recover  .  .  .  3197 

— on    which     principal     and 

surety  are  bound       ....     3202 

Certain  sale  notes  were  deposited 

with  defendant  as  collateral     .     3291 

Check  is  not  an  assignment  by  the 
drawer  to  the  payee  of  a 
debt 3211,3212 

Circumstances  that  a  security  has 

become  or  is  invalid     .     .     .     3242 

Confession  of  judgment  by  a  prin- 
cipal   3282 

Contribution,  security  on  official 
bond  also  aids  principal  in 
breach 3255 

Co-sureties,  as  between  them- 
selves, are  liable  in  proportion 
to  their  amounts  of  stock  .  .  3120 

Creditor  or  surety  has  a  right  to 
havp  any  collaterals  the  debtor 
may  have  pledged  ....  3262 

Different  footing  of   a  surety,  in 

some  respects 3285 

Discharge  in  bankruptcy  does  re- 
lease surety  on  an  appeal  bond,  3263 

of    principal     discharges 

known  surety 3261 

^— —    of  surety   on   a    note   on 

ground  of  forbearance     .    3287,  3288 

Discontinuance  of  an  action  where 
sureties  have  given  bond  to 
plaintiff 3241 

Estate  of  a  surety  bound  jointly  but 

not  severally 3206 

Extension  of  time  of  payment,  upon 


PARAGRAPH, 

consideration  that  maker  will 
annually  pay  interest  .  .  .  3215 

Facts,  and  not  mere  conclusions  of 

law  must  be  stated    ....     3286 

Government  suit  against  sureties  of 

a  postmaster 3292- 

Holder's  possession  is  prima  facie 

evidence  of  ownership  .     .     .     3252 

Indorser  of  an  accommodation  bill 
has  a  right  to  notice  of  dis- 
honor, unless,  etc 3205 

who  was  also  counsel  for 

principal  in  obstructing  collec- 
tion of  debts 3268 

Indulgence  and  passiveness  by 
creditor  with  regard  to  col- 
lateral placed  in  his  hands  .  .  3246- 

or  non-action,  though  in  the 

meantime  the  principal  be- 
comes insolvent 3248 

Judgment  by  confession  gives  the 

surety  the  right  to  expect,  etc.,  3265- 

rendered  against  a   surety 

may   off  set    against   assignee, 

etc 323a 

rendered  against  one  of  the 


makers  of  a  note 3238 

Law  will  not  increase  or  enlarge 

terms  of  an  undertaking  .  .  3256- 
Liability  of  sureties  on  a  note  is  not 

discharge  by  S.  L.  until  after 

four  years,  etc.  .  .  .  3277-3280 
of  surety  is  always  strictis- 

simi  juris 3223- 

of  surety  to  be  extended  by 


implication 31 99^ 

Limitation  laws  act  upon  and  do 

not  extinguish  rights  .  .  .  32891 

Married  woman  can  contract  no 
liability  as  surety  for  her  hus- 
band   3221 

Mercantile  engagements  guaranteed 

by  sureties 3266 

Merely  giving  an  additional  by  a 

principal 3209,3210 

Mere  neglect  of  privileged  creditor 

to  sue .  .  3235 

Mortgage  given  to  secure  payment 
of  notes,  their  time  of  payment 
extended 3218 

Motion  to  set  aside  judgment  on 

replevy  bond 3257" 

N.  became  surety  upon  a  note  for 
L.,  and  the  latter  executed -a 
mortgage  to  secure  him  .  .  3290" 

No  difference  between  surety  con- 
tract than  any  other  ....  3199- 

Notes  payable  to  bearer  are  deposited 

as  collateral  security  for  a  debt,  3274 

Officers  and  managers  of  companies 

are  trustees  .  ,  ,  324T 


INDEX   TO   CASES. 


565 


PARAGRAPH. 

One  who  has  delivered  draft  as  col- 
lateral   3207 

who  is  a  bonaf.de  purchaser 

of  a  debtor's  land  from  a  fraud- 
ulent vendee 3225 

of  joint  makers  of  a  note 

obtains  a  judgment  against  the 
other  makers 3241 

of   three    co-sureties    dies 

and   the   two   living  paid  the 

debt 3196 

of  two  sureties  dies,  and 

his  executor  pays  the  whole 
claim 3280 

Owner  of  negotiable  securities 

which  have  been  stolen  .  3250-3252 

.  of  note  secured  by  collateral 

security  and  by  indorsement, 
and  releases  security  .  .  .  3283 

Parol  promise  to  indemnify  one,  if 

he  will  go  surety  ....  3273 

Part  payment  of  a  debt  already  due 
is  not  sufficient  consideration 
for  extending  time  ....  3222 

Person  indebted  by  bond,  paid  a 
balance  due  upon  it  in  notes 
of  an  insolvent  bank  .  .  .  3275 

Promise  of  a  surety  assuring  the 
payment  of  a  specific  lot  of 
goods 3259 

Proof  of  debt  in  bankrupt  court  by 

judgment 3268 

Right  of  action  accruing  against 

two  or  more  persons  .  .  .  3208 

of   action    of   one    surety 

against  another 3253 

Security  taken  by  one  of  several  co- 
sureties to  indemnify  him  .  .  3228 

Settlement  in  Probate  Court  by 

principal 3581 

Stockholders  give  their  joint  and 
several  note  for  money  loaned 
their  company 3200 

Sureties,  not  having  paid  the  debt 

for  which  they  are  bound  .  .  3195 

Surety  after  judgment  continues  for 

most,  if  not  for  all  purposes  .  3231 

asking  for  an  injunction  to 

stay  the  levy  after  judgment  .  3271 

cannot   be    held   under   a 

judgment  void  as  to  his  princi- 
pal   3216 

cannot  benefit  by  an  excep- 
tion personal  to  principal     .     3234 

does  not  assent  to  an  alter- 
ation of  the  terms  of  his  un- 
dertaking   3230 

for  a  tenant  is  not  released 

as  to  rents  subsequently  accru- 
ing   3258 


PARAGRAPH. 

Surety  has  the  right  to  stand  upon 

the  very  terms  of  his  contract,  3270 

may,  after  maturity  of  debts, 

relevy  goods  mortgaged  to  se- 
cure payment,  etc 3232 

of  an  administratrix  who 

fails  to  perform  her  duties  .  .  3217 

paying    judgment    against 

his  principal  and  himself    .     .     3201 

sign  a  bond  which  he  is  not 

prevented  from  reading  by  any 

trick,  etc 3243 

upon  a  bond,  the  name  of  a 

co-surety,  on  the  faith  of  which 

he  signed,  was  a  forgery    .     .     3237 

who  holds  several  securities 

by  way  of  indemnity     .     .     .     3220 

who  takes  of  the  debtor  a 

mortgage  for  his  indemnity     .     3224 

Surety's  liability  for  his  principal  is 

not  a  valuable  one    ....     3195 

payment  of  what  as  to  the 

creditor  is  his  own  debt     .     .     3203 

Suit  against  a  late  cashier  and  his 

sureties 3267 

Taking  a  lease  of  land  from  an- 
other who  has  bought  and 
claims  the  land  leased  .  .  .  3293 

To  entitle  surety  to  an  assignment 
and  execution  against  his  co- 
sureties   3198 

Undertaking  by  an  infant  as  surety,     3226 

Valid  agreement  to  give  time  on 

note  to  principal 3260 

Verbal  notice  by  a  surety  on  a  note 

to  the  holder  thereof  .  3214,  3215 

Well  settled  that  no  indulgence  by 
the  creditor  toward  the  princi- 
pal debtor,  etc 3245 

When  an  illiterate  man  executes  a 
writing  which  has  been  falsely 
read  to  him 3244 

a  party,  asked  to  sign  a  note, 

as  surety,  refuses  unless,  etc.  .  3213 

there  can  be  no  subrogation,     3202 

Where  assets  descended  to  the  heir 

and  be  made  to  contribute  .  .  3196 

husband  cannot  sue  his  wife 

at  law  or  in  equity  ....  3221 

one  of  two  co-sureties  pays 

the  debt  of  their  principal  .  .  3229 

one  person  becomes  surety 

for  the  payment  of  money  by 
another 3212 

surety  made  the  principal 

his  agent  to  complete  the  note,  3236 

surety  or  indorser  of  a  bank- 
rupt is  released 

the  principal  maker  of  a 

joint  note  dies  .  .  .  3240,3241 


566 


INDEX  TO   CASES. 


PARAGRAPH. 
TAXATION,  Page  452. 

Claiming   that  a  portion  of  capital 

is  in  U.  S.  bonds     ....     3297 

Deed  of  a  state  tax  collector     .     .     3318 

Effect  of  the  amendment  of  B.  Act 

of  1880 3314-3316 

Exemption  conferred  upon  corpo- 
ration   3310 

Fact  that  taxation  increases  expen- 
ses   3305 

Foreign  corporations  taxation     .     .     3322 

Immunity  from  taxation  is  not  such 

a  franchise 3311 

Laws  for  taxation  of  N.  B.  in  Mass.     3313 

Ordinary  deposits  of  U.  S.  (or  N. 
B.  notes),  in  a  bank  are  part 
of  its  assets 3298 

Party  having  no  title  to  land  pay- 
ing taxes  on  same  .  .  3320-3322 

Personal  property  in  hand  of  re- 
ceiver of  a  N.  B 3308 

Power  to  sell  land  for  the  non-pay- 
ment of  taxes 3319 

Profit  upon  capital  or  investment  of 

a  corporation 3294 

Purchaser    of   property    sold     for 

taxes 3317 

Question  of  exempting  deposits  in 

S.   B 3312 

Relator    was   assessed   for   certain  . 

shares  in  a  N.  B 3303 

Return  of  city  assessor,  setting 
forth  amount  of  taxable  capital 
of  banks 3296 

Revenue  act  does  not  make  cor- 
poration liable  for  taxes  .  .  3302 

Shares  of  N.  B.  may  be  taxed    .     .     3306 

Solvent  debts,  notes  and  mortgages,     3295 

Tax  collector's  deed  with  uncertain 

description 3301 

^— •  of  ten  per  cent,  imposed  by 

act  of  July,  1866,     ....     3307 

on  corporation  may  be  pro- 
portioned to  the  income  re- 
ceived   3304 

sale  made  on  a  day  other 

than  that  provided  by  law  .     .     3300 

United  States  currency  and  N.  B. 

notes  belonging  to  a  bank  .     .     3299 

When    N.    B.    shares    cannot    be 

taxed     ........     3309 

TRADE  MARK,  Page  456. 

English  practice  of  retaining  firm 

name 3339 

Habitually  stamping  goods  with  par- 
ticular mark 3340 

Label  adopted  to  designate 

goods 3342-3344 


PARAGRAPH, 
Selling  his  own  goods  in  packages 

with  labels 3341 

Specific  damages  need  not  be 

shown 3343 

Using  another  firm's  name  as  a 

trade  mark 3338- 

Words  in  a  label  adapted  as  a  trade 

mark 3345- 

TRANSITU,  Page  457. 

Before  vessel  arrived  B.'s  notes 

where  protested 3346- 

Goods  sold  to  be  paid  for  on  their 

delivery 3346 

Stopping  goods  while  in  transitu,    3346- 

TRIAL,  Page  458. 

Failure  to  prove  cause  of  action  set 

up  in  his  complaint  ....  3347 

Judgment  upon  a  cause  entirely  dis- 
tinct from  that  alleged  .  .  .  3347 

Ruling  made  on  purely  technical 

grounds 3348- 

TRUSTEE,  Page  458. 

Acquisition  of  legal  title,  with 
notice  the  equitable  title  is  in 
some  other  person  ....  3356 

Action  brought  to  obtain  construc- 
tion of  a  will 335J 

Agreement  to  convey  seven  lots  giv- 
ing back  bond  and  mortgage  on 
each  lot 3378 

Assignee  of  a  claim  against  manu- 
facturing company  ....  3366- 

Cashier  of  a  bank  which  is  the 
cestui  que  trust  in  a  deed  of 
trust 3352 

Constituting  a  valid  express  trust  .     3365- 

Conveyance  of  land  by  deed 
absolute,  but  on  parol  condi- 
tions   3372 

Directors  allowing  funds  to  be  lost 

or  wasted 3354 

Duty  of  trustee  for  sale  to  use  all 

diligence  to  obtain  best  price,  3374 

Habitual  drunkard  conveys  lands 

without  consideration  .  .  .  3357 

Having  interest  in  land,  is  induced 

to  confide  in  another  .  .  .  33601 

Holder  of  one  of  several  notes  se- 
cured by  a  trust  assignment 
without  preference  ....  3359- 

Father  made  a  deposit  in  his  own 
name  as  trustee  for  his  daugh- 
ter, and  died 3350 

Mere  making  deed  to  one  as 

trustee  .  ,  3370- 


INDEX  TO   CASES. 


567 


PARAGRAPH. 

Money  deposited  in  his  own  name 

as  trustee 3367 

Presumption  of  a  resulting  trust 
from  a  wife's  possession  of 
premises,  etc.  .  .  ...  .  .  3355 

Promise  by  a  trustee  to  allow  his 
personal  debt  as  a  credit  upon 
a  note  held  by  him  as  trustee,  3349 

Property  held  upon  any  trust 
to  keep,  or  use,  or  invest  in  a 
particular  way 3377 

Purchaser  by  quit-claim  died  before 
the  maturity  of  the  purchase 
money  notes 3373 

-^— —  of  property  at  trustee's  sale, 
takes  it  subject  to  incum- 
brances 3362 

Receiver  chargeable  with  interest 

on  trust 3371 

-  of  insolvent  life  insurance 

company 3364 

Supreme  court  has  not  the  power 

to  destroy  a  valid  trust  .  .  .  3363 

The  owner  of  property  conveying 

it  to  another  in  trust .  .  3368,  3369 

Trustee  of  a  fund  for  the  security  of 

a  debt  to  others 3351 

Trust  fund  is  traceable  into  what- 
ever character  of  property  it 
may  be  converted  ....  3375 

Using  a  depository  of  government 
bonds  without  permission  of 
owner 3376 

When  a  trustee  is  authorized  to  in- 
vest of  two  specific  modes  .  .  3361 

Where  a  trust  fund  has  been  per- 
verted   3358 

USAGES  OF  TRADE,  Page  463. 
Party   conversant   with   rules  and 

usages  of  trade 3379 

Usages  of  board  of  trade  admitted 

to  justify  the  act 3379 

USURY,  Page  463. 
Accepting  stock  at  par,  which  is  de- 
preciated    

Accommodation  note  sold  at  a  usu- 
rious rate  of  discount     .     .     . 
note  sold  upon  a  usurious 


consideration 
Advancing  money  to  purchase  lands 

for  the  benefit  of  himself  and 

others 

After  foreclosure  and  interest  paid, 
Agent's  retention  of  a  percentage, 

unknown  to  lender  .... 
Agreement   between  factor  and  a 

holder  of  produce     .... 
— — ^—  by    third    person    to    pay 


3454 
3460 
3453 

3430 
3418 

3476 
3396 


PARAGRAPH, 

high   rate  of  interest  by  bor- 
rower      3404 

Agreement  to  pay  money  at  a  cer- 
tain time 3486 

to  pay  more  than  legal  in- 
terest, at  time  of  loan    .     .     .     3450 

— — —  that  borrower  shall  receive 
uncurrent  money  at  more  than 

market  value 3451 

was  not  made  in  this  state,     3464 


Assignment  of  an  expected  surplus 
in  property,  pledged  to  secure 
a  usurious  loan  .  .  .  3408,  3409 

At  time  of  loan,  nothing  is  said  as 
to  rate  of  interest  .... 

Bond  and  mortgage  sold  to  plain- 
tiff at  a  discount 

not   usurious   by   the   law 


3513 
3517 


3407 


3383 


of  the  place  where  payable     . 

Bonus   and   interest  on  bonus  de- 
ducted from  a  claim      .     . 

Borrow,  after   he   has   repaid   the 

money 3518 

Building  societies  are  exempt  from 

usury  laws 3487 

Careless   manner  of    keeping   his 

books 3383 

Certain  amount  received  usuriously,    3388 
notes  to  plaintiff 's  assignor,     3387 


Check  given  for  loan  in  uncurrent 

funds 3447 

Citizen  of  one  getting  a  loan  from 

a  citizen  of  another  State,  3493,  3494 

Code  provides  relief  against  the 

payment  of  illegal  interest  .  3382 

Commission  for  obtaining  loan,  3514, 3515 

Computing  interest  under  mistake 

as  to  time 3385 

Confession  of  judgment  to  aid  in 

violation  of  usury  laws  .  .  3491 

Contract  depending  upon  contingen- 
cies   3429 

for  the  delivery  of  personal 

chattels 3443 

to  procure  assignment  of 

choses  in  action,  at  a  future  day,  3437 

Credit  given  on  a  payment  in  ad- 
vance, for  a  larger  sum  than 
was  paid 3456 

Defendant  confesses  taking  usury,    3392 

Exchange  of  notes  to  enable  one 

party  to  sell  the  others  .  .  .  3459 

of  notes  with  commission  of 

2^  per  cent 3462 

Expense  incurred  in  procuring 

money 3411,  3412 

Express  agreement  for  ten  per  cent.     3467 

Fact  that  debtor  voluntarily  paid 

more  than  six  per  cent.  .  3400-3402 

Forfeiture  of  legal  excess  in  inter- 
est ,  3392 


568 


INDEX   TO   CASES. 


PARAGRAPH. 

Forfeiture  of  usurious  debt  to  School 

Fund 3497 

«'  For  value  received  I  promise  to 

pay  twelve  per  cent."  .     .     .     3404 

Giving  a  note  for  a  larger  amount 
than  the  party  discounting  it 
expected  to  advance  .  .  .  3440 

Greater  rate  of  interest  taken  by  a 

N.  B. 3498 

Jf  principal  and  interest  are  both 

put  at  hazard 3428 

Interest  in  excess  of  six  but  not  ex- 
ceeding ten  ....  3419-3422 

paid  at  the  rate  of  one  dol- 
lar per  day,  for  $l,ooo  .  .  .  3495 

required  to  be  paid  quar- 
terly   3492 

Lease  was  executed  under  a  usu- 
rious agreement 3374 

Loan    affected    through   an   agent 

who  retains  part  of  the  loan,  3500, 3501 

company,  authorized  to  loan 

money  on  pledge,  and  charge 
interest  for  full  month  .  .  .  3439 

made   insurance  company, 

on  condition  that  borrower 
effect  an  insurance  with  them,  3438 

of  notes,  at  their  nominal, 

value  which  are  worth  less     .     3455 

secured  by  pledge  of  stock, 

under  agreement  that  lender 
shall  have  benefit  of  a  rise  in 
value 3434 

Maker  of  an  accommodation  takes 

security 3461 

Mode  and  manner  in  which  to  plead 

usury 3380 

Money  loaned  on  a  note  at  eight 
per  cent,  on  a  note  stated  at 
six  per  cent. 3397 

. loaned   on   condition    that 

borrower  would  sell  to  lender 

real  estate,  etc 3431 

paid  usuriously  may  be  re- 
covered   3477 

Mortgages  made  under  usurious  con- 
tract   3509 

Mortgagor  paid  a  large  commis- 
sion   3507 

Must  be  shown  that  additional  in- 
terest was  paid  or  retained  .  3410 

JNote  and  mortgage  given  as  se- 
curity for  a  loan  of  gold  at  a 
higher  premium 3380 

carried  for  two  years  at  ten 

per  cent 3403 

dated  on  one  day  for  a  sum 

payable  with  interest  from  day 

previous 3395 

discounted  on    the    theory 

that  360  days  make  a  year  .     .     3446 


PARAGRAPH. 

Note  given  to  agent  for  getting 

the  maker  a  loan 3501 

is  the  last  of  a  series  of 

usurious  renewals  ....  3463 

payable  "  on  demand  with 

interest" 3506 

tainted  with  usury  trans- 
ferred to  another 3512 

taken  directly  from  payee 

to  pay  a  debt 3473 

valid  upon  its  face,  calling 

for  legal  interest 3479 

void  for  the  excess  of  in- 
terest  3511 

with  interest  from  a  day 

past 3444 

without  interest,  discounted 

at  more  than  legal  interest .  .  3516 

Notes  given  in  1876,  for  excess  of 

interest 3478 

were  given  in  part  for  usu- 
rious interest  ......  3414 

Original  taint  of  usury  attaches  to 

all  consecutive  obligations .  .  3445 

Place  of  payment  inserted  as  a 

shift  or  device 3407 

of  payment  not  specified 

on  bill 3405 

Pleading  under  a  charge  of  usury,     3432 

Purchase  of  accommodation  paper 

at  gross  sum 3452 

of  land  for  $  12,000  instead 

of  as  first  agreed  upon  at 
#10,000 3436 

Purchasing  property  before  time  of 

redemption  expired  ....  3484 

Reducing  claim  to  sum  loaned,  with 

legal  interest  thereon  .  .  .  3383 

Regulating  rate  of  interest  is  merely 

a  penal  law 3386 

Renewal  of  a  usurious  by  giving 

one  payable  to  third  party,  3470, 3471 

Re-sale  resorted  to,  as  a  cover  for 

usury 3435 

Reservation  of  interest,  payable 
quarterly,  upon  a  sum  payable 
at  future  day 3441 

Right  to  borrow  money  within 

proscribed  limits 3490 

Sale  made  under  a  mortgage, 
whether  contract  was  usurious 
or  not 3488 

Sale  of  cotton  at  price  beyond  its 

real  value 3487 

Selling  lots  to  buyer  at  fictitious 
value  to  a  borrower  of 
money 3415,  3416 

note  payable  at  future  day, 

with  interest 3457 

Suit  by  a  N.  B.  upon  a  bill  of  ex- 
change, defence  usury  .  .  .  3442 


INDEX  TO  CASES. 


569 


PARAGRAPH. 

Suit   by  a   N.    B.   upon   a  bill  of 

exchange 3389 

Surety  cannot  avail  himself  of  usu- 
ry, paid  by  his  principal     .     .     3381 

Taint  of  usury  being  irradicated  by 

changing  securities    ....     3423 

Taking  more  than  lawful  interest 

by  third  party 3394 

more  than  legal  interest  by 

mistake 3427 

of  a  premium  on  making  a 


loan 

security, 


bearing    interest, 


and   giving  checks  for  amount 

payable  in  six  months  .  .  .  3448 
Tendering  legal  interest  by  the 

debtor 3482,3483 

Two  persons  exchange  notes  to 

raise  money 3458 

Unconditional  repeal  of  usury  laws 

in  Me 3503 

Under  former  statute,  usury  was  a 

forfeiture  of  all  interest  .  .  .  3392 
Unlawful  or  corrupt  intent  required 

to  render  a  transaction  usurious,  3426 
Unless  there  is  a  law  limiting  the 

rate  of  interest 3405 

Usury  affects  only  the  distribution 

of  proceeds 3393 

Usurious  agreement  must  be  proved 

as  laid 3465 

Usurious  brokerage  taken  by  third 

person,  whether  an   agent  or 

not 3424 

contract  must  be  described,  3390 

contract  whether  made  or 

implied 3398 

interest  carried  into  a  gen- 
eral account 3502 

-  interest  paid  are  payments 

on  principal 3489 

interest  reserved  or  charged 


3425 


on  a  note  bill  discounted  by  a 
N.  B 

Usury,  as  a  defence,  must  be  speci- 
ally pleaded 3472 

is  a  defence  personal  to  par- 
ties to  the  contract  ....  3475 

set  up  against  negotiable 

paper 3485 

Was  a  contract  for  a  loan  and  not  a 

partnership 3468 

What  constitute  usury,  and  a  cor- 
rupt agreement 

When  a  cover  for  usury,  or  where 
an  honest  contract  .... 

judgment  cannot  be  reduced, 

Where  a  party  has  failed  to  avail 

himself  of  the  plea  of  usury  .  3499 

a   party  overdraws  his  ac- 
count with  a  bank     ,  3399 


3449 

3466 
3510 


PARAGRAPH. 

Where  holder  of  a  note  had  no 
knowledge  of  the  usury  or  ex- 
tension   3397 

interest  is  not  recoverable 

by  suit 3508 

VENDOR,  Page  482. 

Giving  a  receipt  or  taking  a  note, 

with  security 3526 

Guaranteeing  good  title  to  property 

sold J  .  .  .  3519 

Must  be  performed  on  the  day 

named 3528 

Note  for  the  purchase  money  of 

land 3522 

Person  having  discovered  a  flaw  in 

title  to  land 3523 

Purchaser  enjoying  property  for  ten 

years 3530 

Rescinding  contract  for  fraud  .  .  3529 
Same  order  for  goods  is  accepted  by 

vendor 3527 

Saying  or  doing  anything  tending 

to  impose  on  the  other  .  .  .  3531 
Title  does  not  vest  until  delivery  of 

deed 3525 

Vendor  of  land  retains  legal  title 

until  payment  is  made  .  .  .  3521 
Vendor's  lease  on  real  estate  for  pur- 
chase money 3520 

WAREHOUSE  RECEIPTS,  Page  483. 

May  sell  or  dispose  of  property  in  a 
warehouse  in  the  absence  of  a 
receipt 3534 

No  one  can  obtain  the  property  but 

the  holder  of  a  receipt  .  .  3535 

Receipt  issued  for  goods  not  in 

warehouse 3533-3536 

Right  to  pledge  or  pawn  goods  as 
a  security  for  the  payment  of  a 
debt 3536 

WARRANTY,  Page  484. 

Absence  of  the  seals  being  a  breach 

of  warranty 3541 

Bank  cannot  be  charged  with  a 

liability  it  did  not  assume,  3544,  3545. 

Breach  of  warranty  may  be  set  up 

as  a  defence 3538 

Contract  failing  to  warrant  quality,     3537 

Goods,  though  inferior  to  stipulation 

are  retained  by  the  buyer  .  .  3548 

Set-off  consisting  of  money  paid  in 

excess  of  legal  interest.  .  .  3546 

Vendor  impliedly  warrants  goods 
sold  by  him,  without  any  op- 
portunity to  inspect  them  .  .  3550 


570 


INDEX   TO   CASES. 


PARAGRAPH 

Warrantor  is  bound  by  printed  sig- 
nature which  he  adopts  as  his, 
as  fully  as  if  written  ....  3553 

Warranty  implied  on  part  of  vendor 

of  a  bond  or  other  security  .  3539 

-,  of  title  is  implied  in  a  con- 
tract of  exchange  as  in  a  con- 
tract of  sale  3547 

Where  goods  are  warranted  to 
come  within  a  specific  descrip- 
tion   3540 

When  the  vendee  may  receive  and 
retain  goods  and  recoup  dam- 
ages   3542,  3543 


PARAGRAPH. 

Words  "  grant  "  and  "  demise  "  in 
a  lease  for  years  create  an  im- 
plied warranty  of  title  .  .  .  3552 

WRITTEN   INSTRUMENTS, 
Page  486. 

Courts  interpret  written  instruments 
according  to  the  custom  of 
their  use 3554 

Promise  made  by  one  party  without 
a  corresponding  obligation  or 
promise 3555 

When  a  contract  has  two  interpre- 
tations .  ,  3554 


TABLE  OF  CASES 

CITED  IN 

MONROE'S  DIGEST. 


Abbott  v.  Fisher. 

v.  Shephard. 
Abell  v.  Harrington. 
Acer  v.  Hotchkiss. 
Ackley  v.  Westervelt 
Ackman  v.  Harsell. 
Acton  v.  Harlon. 
Adams  &  Co.  v.  Daunis. 
Adams  v.  Carroll  &  Co. 
Adee  v.  Bigler. 

Adm'r  of  D.  R.  Moore  v.  Ulster  B'kg  Co. 
JEtna.  Bank  v.  Winchester. 
./Etna  Ins.  Co.  v.  Alton  City  Bank. 
Agricultural  Bank  v.  Robinson. 
Ahern  v.  Goodspeed. 
Ainsworth  v.  Miller. 
Akerman  v.  Hunsicker. 
Albany  City  Sav'gs  Inst.  v.  Burdick. 
Albany  City  Nat.  B'k  v.  Hunsicker,  et  al. 
Albert  G.  Brice  v.  John  A.  Watkins,  et.  al. 
Aldrich  v.  Ames. 
Albert,  Sheriff,  v.  Lindan. 
Alexander  v.  Alexander. 
v.  Burchfield. 
v.  Lewis, 
v.  Shonyo. 
Allen  v.  Bratton. 

v.  Brown. 

v.  Carr. 

v.  St.  Louis  Bank. 

v.  The  Merchants'  Bank. 

v.  Williamsburg  Savings  Bank. 

v.  Woonsocket  Co. 
Allen  &  Co.  v.  Georgia  Nat.  Bank. 

v.  Ferguson. 
Aller  v.  Alien 

Allison  v.  Thomas  &  Rosenfeld. 
Allshouse  v.  Ramsay. 
Atlantic  Bank  v.  Merchants'  Bank. 
Alt  v.  Meyer. 
Allum  v.  Perry. 
American  Bank  v.  Adams. 
American  Bible  Soc.  v.  Wells. 
American  Express  Co.  v.  Haire. 
American  Nat.  Bank  v.  Wheelock. 


American  Law  Register. 
Ames  v.  Bates. 

v.  Meriam. 

Anderson  Ex'r  v.  Baker. 
Anderson  v.  State. 

v.  Phi  la.  Warehouse  Co. 

v.  Read. 

v.  Schenk. 

v.  State. 

Andreas  Richoux  v.  Mayer  Bros. 
Andre  v.  Bodman. 
Andrus  v.  Vreeland. 
Angle  v.  Northwestern  Mutual  Life  Ins, 

Co. 

Anthony  v.  Capel. 
v.  Wood. 

Appeal  First  Nat.  Bank. 
Appeal  of  Lane,  et  al. 
A.  &  P.  Tel.  Co.  v.  B.  &  O.  R.  R.  Co. 
Argall  v.  Jacobs. 
Armour  v.  Pecker. 
Arnold  v.  Potter. 
Arnot's  Adm'r  v.  Symonds. 
A.   Rochezeau,   et  al.  v.  Wm.   Mcjones, 

etal. 

A.  S.  Bank  v.  Savery. 
Ashhurst  v.  Field. 
Ashlin  v.  Lee. 
Ashton's  Appeal. 
Ashuelot  R.  R.  Co.  v.  Elliot. 
Atkins  v.  Saxton. 
Atlantic  Ins.  Co.  v.  Manning. 
At.  State  Bank  v.  Savery. 
Attorney-General  v.  Simonton. 
Auger  v.  Conture. 
Aultman  v.  Mallory. 
Aurora   Agr'l   &   Horticulture  Society  V. 

Paddock. 

Aurora  City  v.  West. 
Au  Sable  River  Broom  Co.  v.  Sanborn. 
Ausley  v.  Patterson. 
Austin  &  Ellis,  Ag'ts  v.  Cox,  et  al. 
Austin  v.  Fuller. 
Averill  v.  Hedge. 
Avery  v.  Bushnell. 

(571) 


572 


TABLE   OF   CASES   CITED. 


Avery  v.  Easter. 
Ayer  v.  Duncan. 
Aylwin  v.  Cruttenden. 
Ayrault  v.  Pacific  Bank. 
Ayres  v.  Watson. 

Backhouse  v.  Charlton. 
Bacon  v.  Van  Schoonhoven. 
Bailey,  Collector  v.  Clark. 
Bailey,  et  al.  v.  Kennedy,  et  al. 
Bailey  v.  Railroad  Company. 
Bake  man  v.  Pooler. 
Baker  v.  Armstrong. 

v.  National  Ex.  Bank, 
v.  Garvey. 
Baldwin  v.  Bank  of  Newbury. 

v.  Hale. 
Ball  v.  Slaften. 

Balto.  &  Ohio  R.  R.  Co.  v.  Wilkens. 
Bancher  v.  Harrington  &  Co.,  et  al. 
Bank  v.  Graham. 

v.  Hartman. 

v.  Lanier. 

v.  Pettit. 

v.  Raymond. 

v.  Teeters. 

v.  Tennessee. 

v.  Weyland. 

Bank  Commissioners  v.  Bank  of  Buffalo. 
Bank  of  America  v.  Senior. 

v.  Shaw. 

Bank  of  Auburn  v.  Putman. 
Bank  of  Augusta  v.  Earle. 
Bank  of  Bethel  v.  Pahquioque  Bank. 
Bank  of  British  Columbia  v.  Page. 
Bank  of  California  v.  Northam. 
Bank  of  Columbia  v.  Hagner. 

v.  Maryland. 

Bank  of  Commerce  Appeal. 
Bank  of  Kentucky  v.  Schuylkill  Bank. 
Bank  of  Mendocino  v.  Chalfant. 
Bank  of  Michigan  v.  Ely. 
Bank  of  Monroe  v.  Gifford. 
Bank  of  Montreal  v.  Munster  Bank. 
Bank  of  New  Orleans  v.  Smith. 
Bank  of  Old  Dominion  v.  McVeigh. 
Bank  of  Owensboro  v.  Western  Bank. 
Bank  of  Redemption  v.  Boston. 
Bank  of  Republic  v.  Millard. 
Bank  of  St.  Albans  v.  Farmers'  Bank. 
Bank   of  the   Metropolis   v.    N.    England 

Bank. 

Bank  of  Tennessee  v.  Alexander. 
Bank  of  Utica  v.  Goddard. 
v.  Phillips. 
v.  Wager. 

Bank  of  United  States  v.  Davis. 
v.  Dunn, 
v.  Goddard. 
v.  Waggner. 

Bank  of  Washington  v.  Triplett 
Barber  v.  Burrows. 


Bardin  v.  Stevenson. 
Barnard  v.  Gaslin. 
Barnes  v.  DeFrance. 

v.  Ontario  Bank. 
Barnet  v.  Young. 
Barney  v.  Worthington. 
Barrett  v.  Charleston  Bank. 
Barrings  v.  Dabney. 
Barr  v.  Collier. 
Bartlett,  et  al.  v.  Elaine. 
Bartlett  v.  Hawley. 
Bartel  v.  Lope. 
Barthe  v.  Armstrong. 
Bartley  v.  City  of  New  Orleans. 
Bartow  v.  People. 

Barwick  v.  The  English  Joint  Stock  Bank. 
Basehore  v.  Rhodes. 
Baskdull  v.  Herwig  &  Smith. 
Bassett  v.  Hawk. 
Bates  v.  Leclair. 

v.  Wiggins. 

Batesville  Institute  v.  Kauffman. 
Batt  v.  Chase. 
Baum  v.  Tonkin. 
Baxter  v.  Robinson. 
Bayliss  v.  Cockcroft. 
Bayly  &  Pond  v.  Stacey  &  Poland. 
Bayard,  et  al.  v.  McGraw. 
Beard  v.  Westerman. 
Beattie  v.  Ebury. 
Beaubien  v.  Husson. 
Beaudry  v.  Laflamme. 
Becker  v.  Hallgarten. 
Bedle  v.  Wardell. 
Beebe  v.  Pyle. 
Beeson  v.  Lang. 

Bellemue  v.  Bank  of  United  States. 
Bellinger  v.  Kitts. 
Bell  v.  Morrison. 
Bendey  v.  Townsend. 
Ben.  Gerron  v.  G.  W.  &  G.  M.  Hamilton. 
Bently,  et  al.,  Executors  v.  Lamb. 
Bennett  v.  Austin. 
Bd.  Ed.  v.  Fonda. 
Bennett,  W.  W.  v.  J.  W.  Fuller. 
Berian  v.  McCorkill. 
Bernet  v.  Dougherty. 
Bessette,  et  al.  v.  La  Banque  du  People  & 

Quevillon. 
Bestles  v.  Nunan. 
Best  v.  Hoppie. 

v.  Thiel. 
Bevier  v.  Covell. 
Bickford  v.  First  Nat.  Bank. 
Bickett  v.  Taylor. 
Biddle  v.  Wendell. 
Biebinger  v.  Continental  Bank. 
Bierne  v.  Brown's  Adm'r. 
Bigger  v.  Bovard. 
Bigler  v.  Waller. 
Bigly  v.  Powell. 
Billgery  v.  Ferguson. 


TABLE   OF   CASES   CITED. 


573 


Billings  v.  Robinson. 

Bisbee  v.  Taft. 

Bishop  v.  O'Connell,  et  al. 

v.  Small. 
Bissell  v.  Heyward. 

v.  Saxton. 
Black  v.  Bachelder,  et  al. 

v.  Duncan. 

v.  Dressell's  Heirs. 

v.  Ruhlman. 
Blackwood  v.  Chinic. 
Elaine  v.  Bourne. 
Blair  &  Hoge  v.  Wilson, 
Blake  v.  Hall. 

v.  National  Bank. 
Blakely  v.  Johnson. 
Blakeney  v.  Goode. 
Blakeslee  v.  Rossman. 
Blanchard  v.  Blanchard. 
Blandins,  Adm'r  v.  Wade. 
Blease  v.  Garlington. 
Blevins  v.  Rogers. 
Bliss  v.  Allard. 

v.  Nichols. 
Blodget  v.  Blodget. 
Blodgett  v.  Weed. 
Block  v.  Duncan. 
Bloom  v.  Helm. 
Bloom  &  Co.  v.  Kern. 
Bloom  v.  Rensselaer. 
Blonin  v.  Liquidators  of  Hart  &  Hebert. 
Blount  v.  Hawkins, 

v.  Norris. 

Boches  v.  Hathorn. 
Boddington  v.  Schleuber. 
Bohn  v.  Dunphy. 
Boisgerard  v.  N.  Y.  Banking  Co. 
Boit  &  M.  McKenzie  v.  Carr. 
Blonin  v.  Liquidations  of  Hart  &  Hebert. 
Bolton  v.  Richard. 

Boardman  v.  L.  S.  &  M.  S.  R.  R.  Co. 
Bonsall  v.  Conley. 
Boogher  v.  Maryland  Life  Ins.  Co. 
Boone  v.  Citizens'  Sav'gs  Bank. 

v.  Pierpont. 
Boothbay  v.  Giles. 
Booth  v.  Tierman. 
Bossange  v.  Doty. 
Boston  &  Maine  R'y  v.  Bartlett. 
Boston  and  Sandwich  Glass  Co.  v.  Moore. 
Boston  Ice  Co.  v.  Potter. 
Bostwick  v.  Duncan,  Johnston  &  Co. 
Bosup  v.  Nininger. 
Bottomley  v.  Goldsmith. 
Boullt  v.  Sarpy. 
Bowen  v.  Beck. 

v.  School  District,  Etc. 
Bowling  v.  Arthur. 
Bowzi  v.  Stewart. 
Box  v.  The  Provincial  Ins.  Co. 
Boyce  v.  Trustees  of  the  M.  E.  Church. 
Boyd,  et  al.  v.  Kienzle,  et  al. 


Boyd  v.  Emerson. 
Bradshaw,  et  al.  v.  Bradbury. 
Bradley  v.  Parks,  et  al. 
Bradstreet  v.  Everson. 
Bozeman,  et  al.  v.  Browning,  et  aL 
Bradford  v.  Pauly,  et  al. 
Bragg  v.  Morrill. 
Braley  v.  Byrnes. 
Brammerman  v.  Jennings. 
Brandon  Mfg  Co.  v.  Morse. 
Brasted  v.  Sutton. 
Bray  v.  Black. 

Breathuit  v.  Rogers,  Adm'r  of  McLendon. 
Brent  &  Lees. 
Brewster  v.  Bours. 
v.  Carnes. 
v.  Wakefield. 

Brewster,  et  al.  v.  Stratman. 
Brice,  Albert  G.  v.  John  A.  Watkins,  et  al. 
Brick  &  Co.  v.  Merch.  &  Mech's  Ins.  Co. 
Bridgeport  v.  Housatonic  R.  R.  Co. 
Bridges  v.  Robinson. 

Bridget  Reardon  v.  Daniel  Moriarty,  et  aL 
Brigg  v.  Hilton. 
Brill  v.  Turtle. 
Brinkmeyer  v.  Helbling. 
Brinkerhoff  v.  Bostwich. 
Britton  v.  Augier. 
Brobst  v.  Brock. 

Brodie  &  King  v.  Watkins  &  Wife. 
Bromley  v.  Com.  Nat.  Bank. 
Brooklyn  St.  Trans.  Co.  v.  City  of  Brooklyn. 
Brown  v.  Abington  Sav'gs  Bank. 

v.  Jodrell. 

v.  Kiefer. 
Broadway  Savings  Bank  of  St.  Louis  v» 

Edvorster,  et  al. 
Brooks  v.  Avery. 
Brooks,  et  al.  v.  Clegg. 
Brooks  v.  Cutler. 

v.  Holland. 

v.  Martin. 

v.  Robinson. 
Brown,  Adm'r  v.  Brown. 
Brown  ads.  Hendrickson. 
Brown,  et  al.  v.  Broach. 
Brown  v.  Mclntosh. 

v.  Prophit. 

v.  Second  Nat.  B'k  of  Erie. 

v.  Smith. 

v.  Spofford. 
Browne  v.  Steck. 
Brown  v.  Straw. 

v.  Turkington. 

v.  Van  Trees. 

Brugman,  et  al.  v.  McGuire,  et  al. 
Brumby,  et  al.  v.  Barnard,  Agent. 
.  Brummagin  v.  Tallant. 
Brunswick  v.  Birkenbend. 
Brush  v.  Barrett. 
Bruyn  v.  Receiver. 
Bryan  v.  Tooke,  et  al. 


574 


TABLE   OF   CASES   CITED. 


Bryant  v.  Booze. 
Buchanan  Oil  Co.  v.  Woodman. 
Buckley  v.  Seymour. 
Buckner  v.  Mcllroy. 

v.  Sayre. 

Budgett  v.  Jordan. 
Bullard  v.  Bank. 

v.  Randall. 
Bundy.  II  Ind.  398. 
Bunker  v.  Paquette. 
Bunting  v.  Jones. 

Burnap  v.  Nat.  Bank.  < 

Burnes  v.  Scott. 
Burford  v.  Crandell. 
Burkham  v.  Mastin. 
Burnett  v.  Caldwell. 

v.  Monaghan,  et  al. 
Burnham  v.  Comfort. 

v.  Gullentine. 
Burnhisel  v.  Firman. 
Burrell  v.  Bush.  R.  R.  Co. 
Burroughs  v.  Wilson. 
Burton  &  Co.  v.  Hansford,  et  al. 
Bush  v.  Barfield. 
v.  Lathrop. 
Butler  v.  Maples. 
Buttes  v.  Houghwont. 
Butt  v.  Ellett. 

Cadle,  Receiver,  etc.  v.  Tracy. 

Cady  v.  Goodnow. 

Cain  v.  Robinson. 

Cagwin  v.  Town  of  Hancock. 

Calahan,  et  al.  v.  Babcock,  et  al. 

•Callahan  v.  Bank  of  Kentucky. 

Caldwell  v.  Merchants'  Bank. 

v.  Nat.  Mohawk  Valley  Bank. 
Cameron,  et  al.  v.  Merchants'  &  Mf'gers' 

Bank. 

Catnmack  v.  Lewis. 
Campbell  v.  Hooper. 

v.  Mut.  Life  Ins.  Co. 

v.  Nat.  Life  Ins.  Co. 

Canadian  B'k  of  Commerce  v.  Davidson. 
Canady  v.  Krum. 
Cannody  v.  Powers. 
Cannon  v.  Trask. 
Garden,  et.  al.  &  Finlay,  et  al. 
Carey,  et.  al.  v.  Brown. 
Carr  v.  Thompson. 
Carmichel  v.  Latimer. 
Carpenter  v.  Jones,  et  al.,  Adm'rs. 

v.  Longan. 

v.  Rommel. 
Carroll  v.  Kershner. 

v.  Mullanphy. 

Carrol,  et  al.  v.  Green,  et  al. 
Carry  v.  White. 
Carter  v.  Wake. 
Cartier  v.  Pelletier. 
Carter  v.  Thomas. 
Case  v.  Hawkins. 


Casey  v.  Calli. 

v.  Cavaroc. 
v.  Nat.  Bank. 

Cass  v.  Higenbotam. 

Cassidy  v.  Mansfield. 

Castle  v.  Lewis. 

Castwell,  Adm'r  v.  Perkins. 

Cattson,  et  al.  v.  The  First  Universal  So- 
ciety. 

Cauthorn  v.  Harkness. 

Cayuga  Co.  Bank  v.  Hunt. 

Cecil  &  Perry  v.  Hicks. 

Central  Law  Journal. 

Cen.  N.  Bank  v.  Kohner. 
v.  Phelps. 
v.  Pratt. 

Centre  v.  McQuesten. 

Central     Railroad     &    Banking    Co.    v. 
George. 

Chaffraix  &  Agar  v.  John  B.  Lafitte  &  Co. 
v.     Price,     Hine     and 
Tuppe. 

Chambers  v.  Miller. 

Champion  v.  Gordon. 

Chapman  v.  McFie,  et  al. 

Chapmon  v.  P.  N.  Bank. 

Chandler  v.  Monmouth  Bank. 

Charter  Oak  Life  Ins.  Co.  v.  Smith,  et  al. 

Chase  v.  Lord. 

v.  Second  Ave.  R.  R.  Co. 

Chateau  v.  Webster. 

Chatham  Nat.  Bank  v.  Schley,  guardian. 

Chew  v.  Ferrari. 

Chicago  v.  Sheldon. 

Chicopee  Bank  v.  Philadelphia  Bank. 

Chiles  v.  Nelson. 

Chipman  v.  Foster. 

Christenson  v.  Eno. 

Christman  v.  Tuttle. 

Christophers  v.  Garr. 

Christopher  v.  Mayor. 

Chubb  v.  Upton. 

Church  v.  Simmons. 

Cisne  v.  Chidester. 

City  National  Bank  v.  Goodrich, 
v.  Phelps. 

City  of  Lexington  v.  Butler. 

City  of  Central  v.  Wilcoxen. 

City  of  New  Orleans  v.  N.  O.  Canal  & 
B'k'g  Co. 

City  of  Petersburg  v.  Applegrath's  Ad. 

City,  The  v.  Lamson. 

Citizens'  Nat.  Bank  v.  Green. 

Citizens'  Bank  v.  Howell. 

Citizens'  Nat.  Bank  v.  Richmond. 

Claflin  &  Co.  v.  Bryant. 

Claflin  v.  Farmers'  and  Citizens'  Bank. 

Clarke  v.  Esson. 
v.  Lourie. 

v.  Nat.  Bank  of  Albion. 
v.  Stanley. 

Clark  v.  Allen. 


TABLE   OF   CASES   CITED. 


575 


Clark  v.  Dinsmore. 
v.  Hough  ton. 
v.  Metropolitan  Bank. 
Clarihue  v.  Morris. 
Clark  v.  Sheehan. 

v.  Tarbell. 

Ciaremont  Bank  v.  Wood. 
Clary  v.  Smith. 
Clayes  v.  White. 
Clay  v.  Ray. 
Claverie  v.  Gerodias. 
Clawson  v.  McCune's  Adm'r. 
Clements  v.  Macheboeuf,  et  al. 
Clendenin  v.  Southerland. 
Cleveland  v.  Loder. 
v.  O'Neil. 

Clews  v.  Bank  of  N.  Y.  Nat.  Banking  Co. 
Clopton  v.  Spratt,  et  al. 
Close  v.  Holmes. 
Cloyes  v.  Chapman. 
Cliquot's  Champagne. 
Clubb  v.  Hutson. 
Clyde  v  Rogers. 

Coats,  Assignee,  Etc.  v.  Donnell. 
Con.  S.  &  A.  Ass'n  v.  Read. 
Cook  v.  Tullis. 
Corbett  v.  Underwood. 
County  of  Moultrie  v.  Rockingham  Twp. 

Sav'gs  Bank. 
Coate  v.  Bank  of  U.  S. 
Cobb  v.  Beake. 
v.  Gray, 
v.  Knapp. 

Cobett  v.  Underwood. 
Coburn  v.  Goodall. 

v.  Wheelock. 

Cobyhausen  v.  Judd,  et  al. 
Codd  v.  Rathbone. 
Codwise  v.  Hacker. 
Cochecho  Nat.  Bank  v.  Haskell. 
Cockle,  et  al.  v.  Flack,  et  al. 
Cochran  v.  Case. 
Cochran  &  Fulton  v.  Ripy,  Hardie  &  Co., 

et  al. 

Cochran  v.  Ocean  Dry  Dock  Co. 
Coe  v.  Cassidy. 
Coffin  v.  McLean. 
Cogswell  v.  Hayden. 
Cohen  v.  Hale. 
Cahoon  v.  Coe. 
Colby  v.  Bunker. 
Cold  v.  Root. 

Coleman's  Ex'r  v.  Meade  &  Co. 
Coleman  v.  Smith. 
Collins  v.  Bank. 

v.  Bradshaw. 

v.  Gilbert. 

v.  Martin. 

v.  Riggs. 

v.  Paris. 

Comegys  v.  Clarke  &  Comegys. 
Comby  v.  Waters,  et  al. 


Commercial  Bank  v.  Heilbronner. 
Commercial  Nat.  Bank  v.  Gorham. 
Commercial  Bank  v.  Pfeifler. 
Commercial  Bank  of  Penn.  v.  Union  Bank. 
Com'rs  Arapahoe  Co.  v.  Cutter. 
Commissioner  v.  McCormick. 
Comm'rs  of  Marion  Co.  v.  Clark. 
Commonwealth  v.  Adley. 
v.  Barry. 
v.  Evans. 
v.  McCrosius. 
v.  Mech's  Nat.  Bank. 
Comm.,  The   v.    Pitts.,  Fort  W'yn  &  Chi. 

R'way  Co. 
Commonwealth  v.  Wallace. 

v.  White. 
Comstock  v.  Hier. 

v.  Tupper. 

Confederate  Note  Case. 
Conn.,  et  al.  v.  Penn. 
Connecticut  v.  Jackson. 
Connecticut  Trust  Co.  v.  Melendy. 
Conrad,  et  al.  v.  Lee  Blane,  Sheriff. 
Conrad  v.  Waples. 
Continental  Nat.  Bank  v.  National  Bank. 

v.  Townsend. 
Convey  v.  Sheldon. 
Corbett  v.  Schumacker. 
v.  Underwood. 

Cordell  v.  First  Nat.  B'k  of  Kansas  City. 
Cooke,  David  G.  v.  Hugh  and  Andrew 

Allison. 
Cooke  v.  State  Bank  of  Boston. 

v.  State  Nat.  Bank. 
Cook  v.  Baldwin. 

v.  Basley. 

v.  Clark. 

v.  Citizens'  Mutual  Ins.  Co, 

v.  Corthell. 

v.  Fellows. 

v.  Gilman. 

v.  Ludlow. 

v.  Nayer. 

v.  Oxley. 

v.  Tullis. 
Cooley  v.  Broad. 
Cooperative  Ass.  v.  McConnico. 
Cooper  &  Co.  v.  Coates  &  Co. 
Copcutt,  et  al.  v.  McMasters. 
Copp,  et  al.  v.  Lowry  &  Co. 
Corbitt  v.  Salem  Gaslight  Co. 
Corning  v.  Ludlum. 
Cornish  v.  Niagara  Dist.  B'k. 
Cornthwaite  v.  The  First  Nat.  Bank,  Etc. 
Cortner,  et  al.  v.  Walrod. 
Coster  v.  Neal. 
Cotton  v.  Hiller. 
Coupal  v.  Coupal. 
Courrier  v.  Ritter. 
Cowan  v.  Turgeon. 
Cowdrey  v.  Vandenburgh. 
Cowee  v.  Cornell. 


576 


TABLE   OF   CASES   CITED. 


Cowell  v.  Colorado  Springs  Co. 
Cowing  v.  Altman. 
Cowles  v.  Marble. 
Cox  v.  Westcoat. 
Coyne  v.  Weaver. 
Coykendall  v.  Constable. 
Coyle  v.  B.  &  O.  R.  R.  Co. 
Craig  v.  Young. 
Craighead  v.  Peterson. 
Crampton  v.  Zabriskie. 
Crane  v.  Barry. 
Cranson  v.  Smith. 
Crawford  v.  Roberts. 
Cregin  v.  Brooklyn. 
Crim  v.  Starkweather. 
Crippen  v.  Heermance. 
Crocker  v.  Colwell. 
v.  Whitney. 
Cromer  v.  Cromer's  Adm'rs. 

v.  Platt,  et  al. 

Cromwell  v.  County  of  Sac. 
Crook  v.  Rindskoff. 
Crooks  v.  Tully. 
Crosby  v.  Buchanan. 
Cross  v.  Cross. 
Crossley  v.  Moore. 
Crothwait  &  Co.  v.  Missner. 
Crowther  v.  Crowther. 
Cullen  v.  Thompson. 
Cullmans,  et  al.  v.  Lindsay. 
Culver  v.  Badger. 

Cumb.  Bone  Co.  v.  Atwood  Lead  Co. 
Cummings  v.  Saux. 
Cundy  v.  Lindsay. 
Cunningham  v.  Jones. 
Currie  v.  Misa. 
Curtis  v.  Inneritz. 

v.  Leavitt. 

v.  Sprague. 

v.  Valiton. 
Cuts  v.  Guild. 
Cutting  v.  Marlor. 
Cuyler  v.  Ferrill. 

Dacy  v.  New  York  Chem.  MPg  Co. 
Daggett,  et  al.  v.  Johnson. 
Dair  v.  United  States. 
Dale  v.  Peirce. 
Dalton  v.  Cass. 

v.  Smith. 
Daly  v.  Graham. 

v.  Butchers'  and  Drovers'  Bank. 

v.  Proetz. 

Dambmann  v.  Schulting. 
Danforth  v.  Charles,  et  al. 

v.  Pratt. 

Danzeisen's  Appeal. 
Dare  v.  Humphry. 
Darling  v.  Brown. 
Darst  v.  Gale,  et  al. 
Dartnell  v.  Howard. 
D.  &  T.  Co.  v.  Cornforth. 


Davenport  v.  Kleinschmidt. 

v.  Whisler  &  Shields. 
Dasylva,  et  al.  v.  Dufour. 
David  G.   Cooke  v.  Hugh  and  Andrew 

Allison. 
Davis  v.  M.  Arthur. 

v.  Barger. 

v.  Brown. 

v.  Caverly. 

v.  Clark. 

v.  Duncan. 

v.  Essex  Baptist  Society. 
Davis,  et  al.,  in  re.  and  Muir  v.  Chamber- 

lin,  et  al. 
Davis  v.  Leopold. 

v.  Longsdale. 

v.  Marx. 

v.  Neligh. 
Davis,  Receiver  of  Ocean  Nat    B'k  v. 

Weed. 
Davis  v.  Smith. 

v.  Toulmin. 

v.  Willis. 
Davison  v.  Davis. 
Davidson  v.  Lanier. 
Dawes  v.  Harness. 
Dawson  v.  Goodyear. 

v.  Real  Estate  Bank. 
Day  v.  Bach. 
Day  v.  Schulthorpe. 
Dayton,  etc.,  Turnpike  Co.  v.  Coy. 
Deason  v.  Taylor. 
De  Camp  v.  Hamma. 
Decker  v.  Decker. 
De  Gere  v.  Healy  &  Berry. 
De  Haven  v.  Kinsin^gton  Bank. 
De  Lavallette  v.  Wendt. 
Delaware  Railroad  Tax. 
Demorest  v.  Inhabitants  of  New  Barba- 

does. 

Denew  v.  Davenell. 
Denithorne  v.  Hook. 
Denton  v.  Nauny. 
De  Poret  v.  Gusman. 
De  Pusey  v.  Du  Pont,  et  al. 
Deutsche,  et  al.,  use  of  Kanders  v.  Bond. 
Develing  v.  Ferris. 
Devoe  v.  Moftatt. 
De  Witt  v.  Van  Sickle. 
De  Wolf  v.  Murphy. 

v.  Sprague  M'f  g  Co. 
Dickinson  v.  Bank, 
v.  Valpy. 

Dillenbeck  v.  Dygert. 
Dinsmore  v.  Savage. 
Doanes  v.  Phoenix  Bank. 
Dobbins  v.  Parker,  et  ux. 
Dobell  v.  Loker. 
Dobson  v.  Chambers. 
Dodd,  Brown  &  Co.  v.  John  Bishop  &  Co., 

et  al. 
Dodd  v.  Denny. 


TABLE   OP   CASES   CITED. 


577 


Dodge,   et  al.  v.   Freedmans'   Sav'gs   & 

Trust  Co. 

Dodge  v.  Nat.  Ex.  Bank. 
Doe  v.  Thorn. 

Dod  v.  Fourth  NaL  Bank  of  N.  Y. 
Dogier  &  Co.  v.  Barnett  &  Co. 
Dollner,  Potter  &  Co.  v.  Snow,  et  al. 
Donaldson,  Assignee  v.  Farwell,  et  al. 
Donaldson  v.  Cothran,  Adm'r,  et  al. 
Donellan  v.  Hardy. 
Doolittle  v.  Ferry. 
Doran  v.  Smith. 
Dorchester  and  Milton  B'k  v.  New  Eng'd 

B'k. 
Dorchester,  etc.,  Bank  v.  New  England 

Bank. 

Dorsey  v.  Abrams. 
Doster  v.  Brown. 
Dougherty  v.  Deeney. 
Douglas  v.  Cruger. 
Dorwin,  et  al.  v.  Thompson. 
Downes  v.  Madison  Co.  Bank. 
Downey  v.  Whittenberger. 
Dows  v.  Kidder. 

v.  Swett. 
Drake  v.  Root. 

Dresser  v.  Missouri  &  Iowa  R'y  Con.  Co. 
Driggs  v.  Moore. 
Droner  v.  Madison  Co.  B'k. 
Drovers  Nat.  B'k  of  Union  Stock  Yard  v. 

Anglo-Am.    Packing  and    Provision 

Co. 

Dryer  v.  Mercantile  Bank. 
Duble  v.  Balls. 
Duchesney  v.  Evarts. 
Dugway  v.  Senecal. 
Duncan  v.  Brennan. 

v.  Louisville,  etc. 
Duncomb  v.   Brighton   Club   &  Norfolk 

Hotel  Co. 

Dun  ford  v.  Weaver. 
Dunham  v.  Dey. 

v.  Gould. 

Dunklin  v.  Kimball. 
Dunn  v.  Dunn. 
Dunlap's  Ex'r  v.  Shanklin. 
Dunning  v.  Cresson. 
Dunn  v.  Record. 

v.  West. 

Dupuis  v.  Marron. 

Durgy  Cement  &  Umber  Co.  v.  O'Brien. 
Duryee  v.  Dennison. 

v.  Lester. 

Dussol  v.  Bruguiere. 
Dutchess  Co.  Ins.  Co.  v.  Ilachfield. 

Eager  v.  Crawford. 

Earp  v.  Richardson. 

East  Haddam  Bank  v.  Scoville. 

East  River  Nat.  Bank  v.  Gore. 

East  River  Bank  v.  Gedney. 

Eastwood  v.  Kennedy. 


Eastwood  v.  Kenyon. 

Eaton  C.  &  B.  Co.  v.  Avery. 

Eaton  v.  Whitney. 

Eborn  v.  Zempelman. 

Ecton  v.  Harlon. 

Edenfield  v.  Canady. 

Edison  v.  Huff,  et  al. 

Edmonds  v.  Sheahan. 

Edward  J.  Gay  &  Co.  v.  Crichlow  &  Don- 

alson,  et  al. 
Ehrichs  v.  De  Mill. 
E.  H.  Farrar  v.  Stephen  Duncan. 
Eldred  v.  Malloy. 
Eliason  v.  Henshaw. 
Ellicott  v.  Nicols. 
Elizabeth  City  v.  Force,  et  al. 
Elkin  v.  Green. 
Elwood  v.  Deifendorf. 

E.  Marqueze  &  Co.  v.  Fernandez  &  Co. 
Emigrant  Ind.  Sav'gs  Bank  v.  Goldman. 
Emory  v.  Hobson. 

Engler  v.  People's  Fire  Ins.  Co. 
Ensight,  et  al.  v.  Ellison. 
Eg.  L.  As.  Soc.  v.  Bostwick. 
Escott  v.  Escott. 
Erie  Co.  Sav'gs  B'k  v.  Cost, 
v.  Roop. 

Ernst  v.  Steckman. 
Espy  v.  Bank  of  Cincinnati. 
Estate  of  Galvin. 
Etheridge  v.  Gallagher. 
Ettrier  v.  Thomas. 
Eureka  Co.  v.  Bailey  Co. 
Evans  v.  Chapel. 

v.  Cross,  et  al. 

v.  Gale. 
Evans  v.  Lewis. 

v.  Trueman. 

Evansville  Nat.  Bank  v.  Kaufmann. 
Everman  &  Co.  v.  Robb. 
Evertson  v.  Nat.  B'k  of  Newport. 
Exchange  Bank  v.  Butner  &  Edgeworth. 
Exline  v.  Lowery,  et  al. 
Ex  parte  Pye. 
Ewingv.  Howard. 

Fabens  v.  The  Mercantile  Bank. 

Fairchild  v.  Lynch. 

Falkland  v.  St.  Nich.  Nat.  Bank. 

Falls  v.  Gaither. 

Fanson  v.  Linsley. 

Fargo  &  Co.  v.  Ames,  et  ux. 

F.  and  M.  Nat.  B'k  v.  Lang. 
Farmers'  Bank  v.  Gilpin,  et  al. 
F.  &  M.  Nat.  Bank  v.  Hazeltine. 
Farmers'  and  Mechanics'  B'k  v.  Baldwin. 

v.  B.  and  D. 
Bank. 

F.  &  M.  Nat.  Bank  v.  Lang. 

Farmers'  &  Mechanics'  Nat.  B'k  v.  Dear- 
ing. 

Farmers'  &  Mechanics'  Nat.  B'k  v.  King. 


578 


TABLE   OF   CASES   CITED. 


Farmers'  &  Mech.  Bank  v.  Parker. 

v.  Polk,  et  al. 

Farrell  v.  Lovett. 

Farrington  v.  Hodgdon. 

Fassin  v.  Hubbard. 

Fatman  v.  Leet. 

Faulkner  v.  Bailey, 
v.  Hart. 

Faust  v.  Haas. 

Favvcett  v.  Freshwater. 

Fay  v.  Gray, 
v.  Fay. 

Feeter  v.  Weber. 

Feldman  v.  Beier. 

Fellows  v.  Am.  Life  Ins.  &  Trust  Co. 

Ferguson  v.  Crawford, 
v.  Hubbell. 

Feutriss  v.  The  State,  ex  rel.,  etc. 

Field  v.  Sherrill. 

Finnell  v.  Brew. 

First   Nat.  B'k   of  Charlotte  v.  Nat.  Ex. 
B'k  of  Baltimore. 

First  Nat.  Bank  of  Cincinnati  v.  Kelly. 

First  Nat.  Bank  v.  Fourth  Nat.  Bank. 

First   Nat.  B'k   of  Hightstown  v.   Chris- 
topher. 

First  Nat.  B'k  of  Jersey  City  v.  Leach. 

First  Nat.  Bank  of  Lacon  v.  Myers. 

First  Nat.  Bank  v.  National  Marine  B'k. 

First   Nat.  B'k   of  Lyons  v.  Ocean   Nat. 
Bank. 

First   Nat.  Bank   of  Montpelier  v.  Hub- 
bard,  et  al. 

First  Nat.  B'k  of  Salem  v.  Almy. 

First  Nat.  B'k  of  St.  Paul  v.  Nat.  Marine 
Bank  of  St.  Paul. 

First  Nat.  B'k  of  Springfield  v.  Dana. 

First  Nat.  B'k  of  Sturgis  v.  Reed. 

First  Nat.  Bank  of  Rochester  v.  Pierson. 

First  Nat.  Bank  v.  Tisdale. 

First  Nat.  Bank  of  Toledo  v.  Shaw. 

First  Nat.  B'k  of  Trenton  v.  Gar. 

First  Nat.  B'k  of  Washington  v.  Whitman. 

First  Nat.  Bank  v.  Wood. 

Fisher  v.  Apollinaris  Company, 
v.  Bidwell. 
v.  Bishop. 

Fish  v.  New  York  Water  Proof  Paper  Co. 

Fishkill  Savings  Inst.  v.  Nat.  Bank  of  F. 

Fitch  v.  Jones. 

Fitchburg  Mut.  Fire  Ins.  Co.  v.  Davis. 

Fitchburg  Sav'gs  B'k  v.  Rice. 

Fitch  v.  Snedaker. 

Fitzgerald  v.  Barker, 
v.  Blocher. 

Fitzimmons  v.  Chapman. 

Flanders  &  Huguenin  v.  Maynard. 

Flato  v.  Mulhall,  et  al. 

Fleirs,  et  al.  v.  Hellerg. 

Fletcher  v.  Carpenter. 
v.  Fletcher. 
v.  Holmes. 


Florence  v.  Drayson. 

Fogg  v.  Lawry. 

Follett,  John   F.  et  al.  v.  Spencer  Field, 

President,  et  al. 
Foley  v.  Rose. 
Forbes  v.  San  Rafael  T.  Co. 
Force  v.  Elizabeth. 
Ford  v.  Joyce. 
Fordham  v.  Hendrickson. 
Foss  v.  Lowell  Sav'gs  Bank. 

v.  Nutting. 
Foster  v.  Essex  Bank. 

v.  Wightman. 
Fouch  v.  Wilson. 
Foulks  v.  Rhodes. 
Fox  v.  Hudon. 
Fowler  v.  Scully. 
Fraley  v.  Bentley,  et  al. 
Francis  v.  N.  Y.  &  B.  El.  R.  R.  Co. 
Frank  v.  Chemical  Nat.  Bank. 
Frankfort  Bank  v.  Johnson. 
Franklin  B'k  v.  Stewart. 
Franklin  L.  Ins.  Co.  v.  Courtney. 
Frantz  v.  Garrison. 
Frazer's  Adm'rs  v.  Frazer  &  Co. 
Frazer  v.  Jordan. 

Fredenburg,  Adm'r  v.  Turner,  et  al. 
Fredericks  v.  Davis. 
Freehold    Permanent   Bil'g   &   Sav'gs  v. 

Choate. 

Freeman  v.  City  of  Boston. 
French  v.  Irwin. 
v.  Motley. 
v.  Shoemaker. 

Freund  v.  Im.  &  Traders'  Nat.  Bank. 
Frisbie  v.  Moore. 

F.  Savings  Inst.  v.  Nat.  Bank  of  F. 
Front  St.  M.  &  O.  R.  R.  Co.  v.  Butler. 
Fox  v.  Turner. 
Frost  v.  Kopp. 
Frow,  Jacobs  &  Co.'s  Estate. 
Fuller  v.  Eddy. 
Fulton  Bank  v.  N.  Y.  and  Sharon  Canal 

Co. 
Furr  v.  Morgan. 

Gale  v.  Morris. 

Gallatin  County  v.  Beattie. 

Galveston  Co.  v.  Gorham. 

Galveston  Railway  v.  Cowdrey. 

Gammell  v.  Parramore. 

Garden,  Exr's  v.  Derrickson. 

Garnett  v.  McKewan. 

Garrity  v.  Wilcox,  et  al. 

Gary,  Hudson  &  Co.  v.  Jacobson. 

Gass,  et  al.  Appeal. 

Gaston  v.  Am.  Ex.  Bank. 

Gate  v.  Patterson. 

Gaty  v.  Holliday. 

Gault,  et  al.  v.  Wright,  et  al. 

Gauss  v.  Hobbs. 

Gavagan  v.  Bryant,  et  al. 


TABLE   OF   CASES   CITED. 


579 


Garvin  v.  Wiswell. 

Geihard  v.  Boatmen's  Sav.  Inst. 

Gelpcke  v.  City  of  Dubuque. 

Genesse  River  Nat.  Bank  v.  Mead. 

George  v.  Grant. 

German  Sav.  Bank  v.  Habel. 

Gerome  v.  Com.  Exchange  Bank. 

Gerould  v.  Wilson. 

Gerrish  v.  Black. 

v.  Glines. 
Gerron  v.  Pool. 
Getchell  v.  Chase. 
Gibson,  et  al.  v.  .MoflFat  &  Young. 
Gibson  v.  Hough  &  Sons. 

v.  Lenhart,  Receiver. 

v.  Nat.  Park  Bank. 

v.  Warden. 
Giddings  v.  Butler. 
Giles  v.  Ash. 

v.  Perkins. 

Gillaspy  v.  Peck,  et  al. 
Gillet  v.  Campbell. 

v.  Phillips. 

Gillett,  et  al.  v.  Gaffney,  et  al. 
Gilson  v.  Martin. 

v.  Stevens  Machine  Co. 
Giovanni  v.  First  Nat.  Bank. 
Girard  Bank  v.  B'k  of  Penn  Township. 
Glading  v.  Cuberly. 
Gleason  v.  Hanshaw. 
v.  Saunders. 
v.  Wright. 

Glenn,  et  al.  v.  Johnson,  et  al. 
Gloucester  Bank  v.  Salem  Bank. 
Goddard  v.  Foster. 

v.  Sawyer. 

Golding  v.  Waterhouse. 
Goldrick  v.  Bistol  Co.  Sav'gs  Bank. 
Goodman  v.  Eastman. 
Good  v.  Martin. 
Goodnow  v.  Warren. 
Goodwin  v.  Conklin. 

v.  Nickerson. 
Gordon  v.  Appeal. 

v.  Hardin. 

v.  United  States. 
Goss  v.  Lord  Nugent. 
Gottlieb  v.  Hartman. 
Gould  v.  Belcher. 

v.  Cayuga  Co.  Nat.  Bank, 
v.  Town  of  Oneonta. 
Graham  v.  First  Nat.  Bank  of  Norfolk. 

v.  Yeomans. 
Grant  v.  Strong. 
Grand   Rapids   &   Indiana   R.  R.  Co.  v. 

Joshua  C.  Sanders. 
Grass  v.  Funk. 
Gravett  v.  Malone. 
Gray  v.  Blarcom. 

v.  Rollo. 

Greaves  v.  Gouge. 
.Great  West'n  Ins.  Co.  v.  Pierce. 


Greenawalt  v.  Kohne. 
Greene  v.  Doane,  et  al. 
Greenfield  Sav'gs  B'k  v.  Stowell. 
Green  v.  Arnold. 

v.  North  Buffalo  Town'p. 
Greenough  v.  McClelland. 
Greenshields  v.  Plamondon. 
Greenwood  v.  Schumacker. 
Greer  v.  Church  &  Co. 
Greer  v.  Woolfolk. 
Gregory  v.  Barrall. 
Grice  v.  Richardson. 
Grieb  v.  Cole. 
Griffey  v.  Payne. 
Griffin  Assignee  v.  Rice. 
Griffin  v.  Kemp. 
v.  Phillips. 
v.  St.  Louis  Wine  &  Fruit  Growers' 

Asso.,  et  al. 

Griffin,  et  al.  v.  Johnson,  et  aL 
Griffith  v.  Grogan. 
Grimm  v.  Warner,  et  al. 
Grissler  v.  Powers. 
Grocers'  Bank  v.  Neet. 

v.  Penfield. 

Crocker,  et  al.  v.  Lowenthal,  et  al. 
Guernsey,  et  al.  v.  Rexford,  Adm.  Apllt 
Guernsey  v.  Miller. 
Guggenheimer  v.  Geiszler. 
Guill  v.  Guill. 
Gulke  v.  Uhlig. 

Gulliker  v.  Chicago  R.  I.  &  P.  R.  R.  Co. 
Gulpin  v.  Page. 

Gunn  v.  Bolckow,  Vaughn  &  Co. 
Guptill  v.  Home. 
Guptil  v.  McFee. 
Guernsey  v.  Rexford. 

v.  Miller. 
G.  W.   Sentell   &   Co.,  in  Liquidation  v. 

Mrs.  M.  G.  Kennedy  and  Husband. 

Hacker  v.  National  Oil  Co. 

Haddock  v.  Woods. 

Hade  v.  McVay,  Allison  &  Co. 

Haffey  v.  Carey. 

Hager  v.  Union  National  Bank. 

Hahn  v.  Huber. 

Haley  Ex'r  v.  Evans. 

Hale,  et  al.  v.  Pash's  ex'r. 

Hale  v.  Hale. 

v.  Rice. 

Haley  v.  M'ftrs  Fire  &  Marine  Ins.  Co. 
Hallock  v.  Conn.  Ins.  Co. 
v.  Com.  Ins.  Co. 

Halfpenny  v.  The  Peoples'  Fire  Ins.  Co. 
Hall,  et  al.  v.  Henderson. 
Hall  v.  Hickman. 

v.  Kimmer. 

v.  King. 
Hall,  et  al.  v.  Lanning,  et  aL 

v.  Parker,  et  aL 
Hall  v.  Bradbury,  et.  al. 


580 


TABLE   OP   CASES   CITED. 


Hall  v.  Brooks, 
v.  Ditson. 
v.  Spaulding. 
Hamilton  v.  Hooper,  et  al. 

v.  Lycoming  Mut.  Ins.  Co. 
Hamilton,  W.  E.,  et  al.  v.  Nellie  Hodges, 

Tutrix,  et.  al. 
Hamblen  v.  Rartigan. 
Hamill  v.  Thompson,  et  al. 
Hambleton  &  Co.  v.  Central  O.  R.  R.  Co. 
Hanauer  v.  Bartels. 
Handy  v.  Empie. 
Hancock  v.  Chicot  Co. 

v.  Wilson. 

v.  Yunker,  et  al. 
Hannan  v.  Hannan. 
Hannon  v.  Houston. 
Hanson  v.  Donkersley. 
Hannum  v.  Richardson. 
Harding  v.  Colon. 

v.  Tifft. 

Hardy  v.  Tilton. 
v.  White. 
Hare  v.  Hentz. 
Haris  v.  Sterling. 
Harger  v.  Worrall. 
Harker  v.  Anderson. 
Harlan  v.  Sigler. 

Harley  v.  Eleventh  Ward  Nat.  B'k. 
Harmon  v.  Hope. 
Harner  v.  Hathaway. 
Harper  v.  Harper. 
Harrington  v.  Brown. 

v.  Wright,  et  al. 
Harris'  Case. 
Harrison  v.  Glover. 
Harris  v.  Tumbridge. 

v.  White. 

Hashall  v.  Farhall. 
Harshman  v.  Bates  County. 
Hart  v.  Bullion, 
v.  Carroll. 
v.  Life  Ass'n. 

Hartford  Fire  Ins.  Co.  v.  Smith,  et  al. 
Hartford,  Thayer  &  Co.  v.  Street. 
Hastings  v.  Clendaniel,  et  al. 
Hartman  v.  Banner. 

v.  The  Bank. 
Harwood  v.  Pearson. 
Hastings  v.  Drew. 
Hatch  v.  Cent.  Nat.  Bank. 

v.  Coddington. 
Hausbrough  v.  Peck. 
Hauselt  v.  Vilmar. 
Hawley  v.  Bingham. 
Hazard  v.  Durand. 
Hayward  v.  Nat.  Bank. 
Hayes  v.  Birks. 
Hayes,  Adm'r  v.  Hayes. 
Haynes  v.  Rudd. 
Hays  v.  Closon. 
Hay  v.  S.  F.  Ins.  Co. 


Healey,  Berry  &  Co.  v.  Scofield. 

Hefferman  v.  Adams. 

Heffron  v.  Flanigan. 

Heidingsfelder,  et  al.  v.  Slade  &  Ether- 
edge,  et  al. 

Heist  v.  Hart. 

Helmer  v.  Krolick. 

Kelt  v.  Whittier. 

Hemphill  v.  Collins. 

Henault  v.  Thomas,  et  al. 

Henderson  v.  Ackelmire. 

Hennequin  v.  Clews. 

Henshaw  v.  Root. 

Hepburn  v.  Montgomery. 

v.  School  Directors  of  Borough 
of  Carlisle. 

Herring,  et  al.  v.  Wickham  &  Wife,  et  al- 

Hibernian  Bank  v.  Everman   et  al. 

Hibernia  Nat.  B'k  v.  Lacomb. 

Hilleary,  et  al.  v.  Thompson,  et  al. 

Hill  v.  Miller. 

v.  Reifsnider. 

Higgins  v.  Rector. 

Higley  &  Co.  v.  Millard,  et  al. 

Hicks  v.  Randolph,  et  al. 

Himrod,  et  al.  v.  Baugh. 

Hoard  v.  Garner. 

Hobbs  v.  McLean. 

Hoey  v.  Jarman. 

Hoffman  v.  John  Hancock  Mut.  Life  Ins, 
Co. 

Hoffman  &  Co.  v.  Bank  of  Milwaukee. 

Holcraft  v.  Mellott. 

Holden  v.  New  York  &  Erie  Bank. 

Hogan  v.  Daniel  &  Thos.  Healy. 

Hogarth  v.  Wherley. 

Holland  v.  Barnes, 
v.  Clarke. 
v.  Heyman  &  Bro. 
v.  T.  State  of  Florida. 

Holladay  v.  Daily. 

Holliday,  et  al.  v.  Union  P.  &  B.  Co. 

Holmes  v.  Brooks, 
v.  Farris. 
v.  Haggart. 
v.  Holmes. 
v.  Knights. 

Holt  v.  Ross. 

H.  M.  &.  Co.  v.  Farrington. 

Home  Life  Ins.  Co.  v.  Potter,  et  al. 

Homestead  Co.  v.  Valley  R.  R. 

Hook  v.  Payne, 
v.  Pratt. 

Hooper  v.  Citizens'  Nat.  Bank. 

Hooker  v.  Eagle  Bank. 

Hoover  Assignee  v.  Wiese,  et  aL 

Hope  v.  Dixon. 

Hopkins  v.  Forster. 

Home  v.  Rouquette. 
v.  Sullivan. 

Horton  v.  Castner. 

Hosford  v.  Stone. 


TABLE   OF   CASES   CITED. 


581 


Hostetter  v.  Hollinger. 
Hough  v.  Hill. 
House  v.  House. 

v.  Vinton  Co.  Nat.  Bank. 
Houseman  v.  Girard  Building  Ass. 
House  v.  Trustees  of  Schools. 
Houston  v.  Crutcher. 
Howard  v.  Johnston. 

v.  Jones  &  Starke. 
v.  Sabourin. 
v.  Schmidt. 
Howall  v.  Adams. 
Howe,  et  al.  v.  Lemon,  et  ux. 
Howell  v.  Leavitt. 
Howe  Machine  Co.  v.  Farrington. 
Howes  v.  Woolcock. 
Hoyle  v.  Lowe. 

Holyford  Mining  Co.  v.  National  Bank. 
Hoyt  v.  Godfrey. 
Howze  v.  Patterson. 
Hughes  v.  Bank  of  Somerset 
Hughes'  Adm'r  v.  Harderty. 
Hughes  v.  Nelson. 
Hun  v.  Gary. 
Hunter  v.  Wood. 
Huntington  v.  Knox. 
Hunt  v.  Brewer. 
Hurd  v.  Brown. 

Hunt  and  Vaughn  v.  Shackelford. 
Hunt  &  Macaulay  v.  Mississippi  Central  R. 

R.  Co. 

Hunt  v.  Spencer. 
Hubbard  v.  Mosely. 

Huffaker  &  Shy  v.  Nat.  Bank  of  Monti- 
cello. 

Hull  v.  Belknap. 
Hulse  v.  Hulse. 
Hurd  v.  Kelly. 
Hursford  v.  Harned. 
Huston  v.  Plato. 
Hutchinson  v.  Blakeman. 
v.  Thatcher. 

Hutchins,  et  al.  v.  Cohen  &  Cohen. 
Huyler  v.  Dahoney. 
Hyde  v.  First  Nat.  Bank. 

v.  Lawrence. 

v.  Planter's  Bank. 
Hynes  v.  Dickinson, 
v.  Patterson. 

Ind.,  Peru  &  Chicago  R.  R.  Co.,  Reps.  v. 

Tyng,  Appeal. 
Indig  v.  Nat.  City  Bank. 
Tngham  v.  Primrose. 
Ingraham  v.  Disborough. 
In  re  Att'y  Gen'l  v.  N.  L.  Ins.  Co. 

v.  Guard.  Mut.  L.  Ins.  Co. 
In  re  Beewith. 
In  re  Braclner. 
In  re  Dean. 
In  re  Frandsow. 
In  re  Friedman. 


In  re  Handlin. 

In  re  Louis. 

In  re  Manhat.  Sav'gs  Institute. 

In  re  Manuf.  National  Bank. 

In  re  Merrill. 

In  re  N.  F.  &  W.  R.  Co. 

In  re  Rec'rship  of  Guarda.  Sav'gs  Inst. 

In  re  Ross. 

In  re  G.  Savings  Institution. 

In  the  matter  of  the  assignment  of  Holt. 

Iron  Mountain  Bank  v.  Murdock. 

Irving  Bank  v.  Wetherald. 

Irving  Nat.  Bank  v.  Alley. 

Irvine  v.  Irvine. 

Ivins  v.  Hines. 

Jacks  v.  Adair. 
Jackson,  et  al.  v.  Dodge. 
Jackson  v.  Ludeling. 

v.  Twenty-third  St.  R.  Co. 
v.  Vickburg  Co. 

J.  D.  Hill  &  Co.  v.  Mrs.  Bourcier,  et  aL 
Jaeger  v.  Whitsett. 
Jagger  Iron  Co.  v.  Walker. 
Jacobs  v.  Turpin. 

Jacob  C.  Van  Wickle  v.  Acie  Landry. 
Jefferson  v.  Tunnell. 
Jellison  v.  Jordan. 
Jendevine  v.  Rose. 
Jeness  v.  City  of  Blakhawk. 
Jenks  v.  Jenks. 
Jenne  v.  Marble. 
Jernigan  Ex'r  v.  Carter. 
Jerome  v.  McCarter. 
Jewell  v.  Bowman. 
Johns  v.  Bailey,  et  al. 
Johnson,  et  al.  v.  Berlizheimer. 
Johnson  v.  Kaiser. 

v.  Geoffrion. 
v,  Mayer. 
Johnston  v.  Allen. 
Johnston,  et  al.  v.  Patterson. 

v.  Talley,  et  al. 
Johnston,  Trustee,  Etc.  v.  Wilson's  Adm'r, 

et  al. 

Jordan  &  Co.  v.  Anderson. 
Joseph  v.  Delisle. 
Joseph    V.   Ledoux,   Adm'r   v.    John    C. 

Burton,  Mrs.  Ledoux,  Intervenor. 
Joliet  Iron  &  Steel  Co.  v.  Scioto  Fire  and 

Brick  Co. 
Jones  v.  Graham. 

v.  Backus,  et  al. 

v.  Benedict. 

v.  Hetherington. 

v.  Holcombe. 

v.  Howard. 

v.  Stephenson. 
Jordon  v.  Wells. 
Jordan  v.  Wimer. 
Juniata  Building  Ass.  v.  HetzeL 
Judge,  etc.  v.  Braswell  &  Co. 


582 


TABLE   OF   CASES   CITED. 


Kaufman  v.  Broughton. 

Kahnweiler  v.  Anderson. 

Kansas  Pacific  R'y  Co.  v.  Lundin,  Admr. 

Kappes,  et  al.  v.  Geo.  E.  White. 

Kasson,  et  al.  v.  Noltner. 

Kay  v.  Fielding. 

Kearney  v.  Kinch,  et  al. 

Keene  v.  Beard. 

Keevil  v.  Donaldson. 

Keller  v.  Johnson. 

v.  Orr. 
Kelly  v.  Christal. 

v.  West. 

Kempner  v.  Churchill. 
Kenicott  v.  The  Supervisors. 
Keighler  v.  Savage  M'f  g  Co. 
Keim  &  Co.  v.  Avery. 
Kennedy  v.  Gibson,  et  al. 

v.  Otoe  Co.  Nat.  Bank, 
v.  R.  R. 
v.  Skerr. 
Kent  v.  Quicksilver  Mining  Co. 

v.  Walton. 
Kern  v.  Von  Phul. 
Kerr,  et  al.  v.  Sharp. 
Kerr  v.  Steman. 
Kersey,  as  Assignee,  etc.,  App.  v.  Don- 

nell,  et  al. 

Kershaw  v.  Kirkpatrick. 
Ketchum  v.  Cummings. 
Ketchun  v.  Duncan. 
Keystone  Bridge  Co.  v.  McCluney. 
Kidder,  Assignee  v.  Norrobin,  et  al. 
Kidd  v.  McCormick. 
Kiel  v.  Reay. 
Kile,  Sheriff  v.  Gielner. 
Kirby  v.  Mills. 
King  v.  Finch. 
Kilgour  v.  Gorkley. 
Kimball  v.  Coon  Ex.  Nat.  Bank. 
King  v.  Bronson. 
Kingsley  v.  Vernon. 
Kinna  &  Ming  v.  Woolfolk. 
Kinsman  v.  Kershaw. 
Kitchell  v.  Mudgett,  et  al. 
Kittle  v.  Wilson. 
Kline  v.  Jewett. 
K.  L.  Ins.  Co.  v.  Nelson. 
Kleinschmidt  v.  McAndrews. 
Knapp  v.  Mayor,  Etc.,  of  Hoboken. 

v.  Roche. 

Knapp,  et  al.  v.  The  Bank  of  Montreal. 
Knight  v.  Mann. 
Knox  v.  Baldwin. 

v.  Comm'rs  of  Shawnee. 

v.  Goodwin. 

Kochereau,  et  al.  v.  William  Mcjones. 
Kock  v.  Block. 
Kouns  v.  Bank  of  Ky. 
Kountz  v.  Holthouse. 
Kraft  v.  F.  P.  &  P.  Ass'n. 
Kranest  v.  Timon. 


Krone  v.  Krone. 

Kruger  v.  Western  Fire  &  Marine  Ins. 

Co. 
Kyser  v.  Wells. 

Laclede  Bank  v.  Schuler. 
Lafayette  Sav'gs  B'k  v.  St.   Louis  Stone- 
ware Co. 
Laing  v.  McCall. 
Lamb  v.  Paine,  et  al. 
Lamville  Co.  Nat.  Bk.  v.  Bingham. 
Lanahan  v.  Scans. 
Lanes'  Appeal. 
Lane  v.  Losce. 

v.  Smith. 

Langford  v.  Freeman. 
Langton  v.  Harder. 
Langston  Adm'rs  v.  Aderhold. 
Lannes  v.  Workingmen's  B'k,  et  al. 
Lansing  v.  Low. 
Lanusse  v.  Baker. 
La  Rocque,  et  al.  v.  Andre,  et  al. 
Lathrop  v.  Davenport. 
Lauback  v.  Lauback. 
Laubenheimer,  App.  v.  McDermott. 
Laughlin  v.  Ihmsen. 
Lawrence  v.  Stonington  Bank. 

v.  Walmsley. 
Lawson  v.  McCartney. 
League  v.  Waring  &  Co. 
Leake  v.  Sutherland. 
Leal  v.  Walker. 

Leather  Mf 'gr  Bank  v.  Morgan. 
Le  Banque  Nat.  v.  Sparks. 
Lee  v.  Clark,  Rosser  &  Co. 
Leese  v.  Martin. 

Leggett  v.  New  Jersey  Banking  Co, 
Lehman,  Abraham  &  Co.  v.  Levy. 
Lehow  v.  Simonton,  et  al. 
Lemay  v.  Williams. 
Lengsfield,  et  al.  v.  Richardson,  et  aL 
Lerry  v.  Lubman. 

Leslie  v.  Knickerbocker  Life  Ins.  Co. 
Lester  v.  Gibbon. 
Lesure  v.  Norris. 
Lendt  v.  Town  of  Sharon. 
Levan's  Appeal. 
Levering  v.  Washington. 
Levey  v.  Baker. 
Levi  v.  Earl. 
Levy  v.  Bank  of  United  States. 

v.  Cohen. 

v.  Pyne  &  Richards. 
Lewis,  et  al.  v.  Davisson's  Ex'r. 
Lewis  v.  Barton. 
Lewis  ex'ors  v.  Overly's  adm'r. 
Lewis  v.  Hawkins. 

v.  Laftey,  et  al.,  Adm'rs. 

v.  Pease. 

v.  Peck. 

v.  Rountree. 
Lewis,  Trustee  v.  United  States. 


TABLE   OF   CASES   CITED. 


583 


Lincoln  v.  Rowe. 

Loan  Association  v.  Stonemetz. 

Locke  v.  Lewis. 

Lock  v.  Selwood. 

Lockwood  v.  R.  R.  Co. 

Logan,  et  al.  v.  Brick,  et  al. 

Logan  v.  Hebert. 

v.  Smith. 

v.  Logan. 

Longstreet  v.  Phila. 
Long  v.  Walker. 
Loomis  v.  Ramsey. 
Looney  v.  Adamson. 

v.  District  of  Columbia. 
Lord  v.  Bigelow. 

v.  Laurion,  et  al. 
Loring  v.  City  of  Boston. 
Lorrilard  v.  Clyde. 
L.  O.  S.  R.  R.  Co.  v.  Curtiss. 
Louisiana  v.  Wood. 
Louisa  Frederick,  Tutrix  v.  Robert  Fas- 

nacht. 

Lovett  v.  Cornwall. 
Low  v.  Conn.  &  P.  R.  R. 
Lowell  v.  Meikle. 
Lowenstein  v.  Flourand. 

v.  Knopf. 

Lloyd  v.  West  Branch  Bank. 
Luse  v.  Isthmus  Transit  Railway  Co. 
Lozier  v.  Crofts. 
Lucas  v.  Brooks. 

v.  Chamberlin. 
Luders  v.  Rasmus. 
Lum  v.  Robertson. 
Ludington  v.  Bell. 
Ludwick  v.  Huntzinger. 
Ludwig  v.  Gillepsie. 
Lungstrass  v.  German  Ins.  Co. 
Lillenthal  v.  Champion,  et  al. 
Lincoln  v.  Claflin. 
Lindsey  v.  Rottaken. 
Linville  v.  Savage. 
Littaner  v.  Goldman. 
Lycoming  Fire  Ins.  Co.  v.  Jackson. 
Lyman,  et  al.  v.  Chamard. 
Lynch  v.  First  Nat.  Bank. 
Lynde  v.  The  County. 
Lyon  &  Co.  v.  Culbertson,  Blair  &  Co. 
Lyon  v.  Jerome. 

Maas  v.  Missouri  R.  R.  Co. 

McAdow  v.  Block. 

McBean  v.  Fox,  et  al. 

McBratney  v.  R.  W.  &  O.  R.  R.  Co. 

McCall  v.  Nave. 

McCausland  v.  Ralston. 

McCarthy,  et  al.  v.  Barthe. 

McCloskey,  Bigley  &  Co.  v.  Wingfield  & 

Bridges. 

McClurkin  v.  Byers. 
McComack  v.  Molburg 
McCombs  v.  Allen. 


McConnell  v.  Blood. 

v.  Denhon. 

v.  Sherwood. 
McCord  v.  Crocker. 
McCoy  v.  Babcock. 

v.  Dineen. 

McCraken  v.  Mclntire. 
McCraw  v.  Welch. 
McCullock  v.  Hoffman. 
McDowell,  et  al.  v.  Stewart. 
McDonald  v.  Holgate. 
McDowell  v.  Bank  of  N.  &  B. 

v.  B'k  of  Wilmington  &  Brandy- 
wine. 

McFadden  v.  Jerkyns. 
McGavock  v.  Chamberlain. 
McGregory  v.  McGregory. 
McGuinness  v.  Blegh. 
McGuire  v.  Van  Pelt. 
McGoren  v.  Avery. 
McGrade  v.  German  Sav'gs  Inst. 
McGrath  v.  Sinclair. 
McGraw  v.  Tatham. 
Mclntyre  v.  Parks. 
McKeajre  v.  H.  F.  Ins.  Co. 
McKeithen  v.  Pratt. 
McKinney  v.  Collins. 

v.  Merrick. 
McKinster  v.  Utica  Bank. 

v.  Utica  Bank. 
McLane  v.  Paschal. 
McLear  &  Kendall  v.  Succession  of  Hun- 

sicker. 

McLeon  v.  Fleming. 
McMasters  v.  Willhelm. 
McMillan  v.  Parkell. 
McPherson  v.  Cox. 

McSherry  v.  Brooks  &  Barton,  Trustees. 
McVeigh,  et  al.  v.  Allen. 
Mabey  v.  Adams. 
Macbeth  v.  Wanless. 
Macfarlane  v.  Devy. 
Machaness  v.  Long. 
Macher  v.  Frith. 
Mackintosh  v.  Eliot  Nat.  Bank. 
Mackasy  v.  Ramsays. 
Mackay  v.  The  Commercial  Bank  of  New 

Brunswick. 
Macky  v.  Dillinger. 
McMurray,  et  al.  v.  Noyes. 
Maddox  v.  Stephenson. 
Magruder  v.  Admire,  et  al. 
Magruder,  Receiver  v.  Colston,  et  al. 
Mahn  v.  Hussey. 

Mahalen  v.  The  Dublin  &  Chapelized  Dis- 
tilling Co. 

Mahoney  v.  East  Holyford  Mining  Co. 
Mailloux  Audet  &  Mailloux  v.  Carrier. 
Malone  v.  Kelly. 
Malony  v.  Fortune. 
Mandeville  v.  Union  Bank. 
Manchester  v.  Braedner. 


584 


TABLE   OP  CASES   CITED. 


Manhattan  Co.  v.  Lydig. 

v.  Osgood. 
Manion  v.  Fahy. 

M'f 'g  Bank  of  Chicago  v.  Barnes. 
Manuf 's  &  Merch'ts  B'k  v.  Follett. 
Manville  v.  Edgar. 
Maraist  v.  Guilbeau. 
Marine  Bank  v.  Fulton  Bank. 
Marion  Savings  B'k  v.  Dunkin. 
Marsh  v.  Armstrong. 
Marshall  v.  Mitchell. 
Marsh  v.  Oneida  Bank, 
v.  Putney, 
v.  Whitmore. 
Mark's  Appeal. 
Mark  v.  City  of  Buffalo. 
Markley,  et  al.  v.  Langley,  et  al. 
Marks  v.  Sewall. 
Mark  v.  Wetzlar. 
Marr  v.  Lewis, 
v.  Marr. 
Martin  v.  Cole. 

v.  Skehan. 
v.  Smith. 
v.  Tobin. 

v.  The  Hazard  Powder  Co. 
Mason  v.  Ammon. 

v.  Macdonald. 
Massue  v.  Crebassa. 
Marvin  v.  Hymers. 

Matter  of  Freil,  Assignee  of  Foley  &  Co. 
Matherson  v.  Kelly. 
Matteson  v.  Moulton. 
Mathewson  v.  Sprague. 
Mathews  v.  Aten. 
Matthews  v.  Crosby. 

v.  Mass.  Nat.  Bank, 
v.  Morris. 
v.  Phelps. 
Mayer  v.  Gill. 

v.  The  Mayor. 
May  &  Sloan  v.  Gamble. 
Maynard  v.  S.  B.  &  N.  Y.  R.  R.  Co. 
Mayhue  v.  Snell. 
Mead  v.  Merchants'  Bank. 

v.  Small. 
Mean's  Appeal. 

Mechanic's  Building  Ass.  v.  C.  L.  Fergu- 
son. 

Mechanics'  B'k  v.  Carp, 
v.  Earle. 

v.  Bank  of  Columbia, 
v.  Merchants'  Bank, 
v.  Schaumberg. 
v.  Seton. 

Mechler  v.  First  Nat.  B'k  of  Hagerstown. 
Melendy,  et  al.  v.  Capen. 
Mellon  v.  Moore. 
v.  Lemon. 

Me^imert  v.  McKeen. 
Memphis  &  Little  Rock  Ry.  v.  Railroad 
Cnm'ra. 


Mendenhall  v.  Steckell. 

Menges  v.  Foick. 

Merchants'  B'k  of  Canada  v.  Griswold. 

Merchants'  Bank  v.  Rudolf. 

Merch.  Nat.  Bank  v.  Goodman. 

Merchants'  Nat.  Bank  v.  Hall. 

v.  Nat.  Bank, 
v.  Sells  &  Co. 

Merchants'  B'k  v.  State  Bank. 
Merchants'  Nat.  B'k  v.  State  B'k. 
Merchants'  Bank  v.  Valley  Packing  Co. 
Merch.  MPgs'  Bank  v.  Stafford  Bank. 
Merrikan  v.  Godwin,  et  al. 
Merrill  v.  Gamble. 
Merrills  v.  Law. 

Merry,  Adm'r  of  Patterson  v.  Lynch. 
Meserole  v.  Archer. 
Metcalf  v.  Grover. 
Metropolitan  Bank  v.  Godfrey. 
Meyer,  et  al.  v.  Hanchett. 
Michigan  Bank  v.  Eldred. 
Mickle  v.  Peet. 

Miguel  Avendano  v.  I.  W.  Arthur  &  Co. 
Miller  v.  Excelsior  Stone  Co. 

v.  Holden. 

v.  Irwin. 

v.  Kempner. 

v.  Life  Ins.  Co. 

v.  Long. 

v.  McKinzie. 

v.  Miller. 

v.  Penn. 
Milks  v.  Rich. 
Mills  v.  Kuykendall. 
Miles  v.  Loomis. 
Mills  Co.  Nat.  Bank  v.  Perry. 
Mills  v.  Smith. 

v.  Van  Voorhis. 
Miltenberger  v.  Cooke. 
Mineral  Point  R.  R.  Co.  v.  Barren. 
Miner's  Trust  Co.  Bank  v.  Roseberry. 
Mimger  v.  Albany  City  Nat.  B'k. 
Misa  v.  Currie. 
Missiquoi  Bank  v.  Sabin. 
Mitchell  v.  D.  Armond. 
Mitchell,  et  al.  v.  Brown,  et  al.  &  Baillie. 
Mitchell  v.  Browne. 

v.  Read. 

Mix  v.  Shattuck,  et  al. 
Mr.  M.  W.  Graham  v.  Mrs.  Z.  A.  Thayer. 
Mohawk  Bank  v.  Roderick. 
Moir  v.  Allen. 

Mondel,  et  al.  v.  Mower,  et  al. 
Monk  v.  Whittenbury. 
Montague,  et  al.  v.  Weil  Bros. 
Montanye  v.  Wallahan. 
Montgomery  Co.  Bank  v.  Albany  City  B'k, 
Moody  v.  Moody. 
Moore  v.  Bank  of  Commerce. 

v.  Fuller. 

v.  Miller. 
Moors  v.  Kidder. 


TABLE   OF  CASES   CITED. 


585 


Moran,  et  al.  v.  Prather. 
Moran  v.  McLarty. 
Morgan,  et  al.  v.  Dod. 

v.  Francklyn. 
Morgan  v.  Louisiana. 
Morgan's  Sons  Co.  v.  Troxell. 
Moncrty  v.  Beecher. 
Morse  on  Bank  and  Banking. 
Morrison  v.  Norman. 
Merrill  v.  Beaver. 
Morris  v.  Bacon. 
Morrison  v.  Kinston. 
Morrow  v.  Morgan. 
Morton  v.  Thurber. 
Morville  v.  Am.  Tract  Society. 
Mosher  v.  Randall. 
Mosier  v.  Norton,  et  al. 
Mosses  v.  McDivitt. 
Motley  v.  Downman. 
Moule  v.  Brown. 
Mowry  v.  Bishop. 

v.  Shumway. 

Mrs.  A.  R.  Richardson  v.  Moses  Mann. 
Mrs.  Emily  L.  Hart,  et  al.  v.  St.  Charles 

Street  Railroad  Co. 
Mrs.    Marie   E.   Dawson  v.   Marie  Lan- 

dreaux. 

Mrs.  Mary  L.  Hardin  v.  Wolf  &  Cerf. 
Mudge  v.  Bullock,  Adm'r 
Mulhall  v.  Keenan. 
Mullen,  et  al.  v.  Russell,  et  al. 
Mumford  v.  Am.  Life  Ins.  &  Trust  Co. 
Munger  v.  Albany  Cit.  Nat.  Bank. 
Muller  v.  Dows. 
Muroe  v.  King. 
Murphy  v.  Gaskin's  Admr's. 
Murphy,  Neal  &  Co.,  et  al.  v.  Creighton. 
Murray  v.  Beard, 
v.  Judah. 
Muzzey  v.  Reardon. 

Nagle  v.  McFeeters. 

Nash  v.  White's  Bank  of  Buffalo. 

Nalle  &  Cammach  v.  A.  L.  D.  Conrad,  et 
al. 

Nassau  Bank  v.  Jones. 

National  Bank  at  Dover  v.  Segar. 

Nat.  Bank  of  Auburn  v.  Lewis. 

Nat.  Bank  v.  Bigler. 

Nat.  B'k  of  the  Commonwealth  v.  Me- 
chanics' Nat.  B'k. 

National  Gold  Bank  v.  McDonald. 

National  B'k  of  Gloversville  v.  Wells. 

National  Bank  v.  Ins.  Co. 

National  B'k  of  Jacksonville  v.  Mapes,  et 
al. 

Nat.  Bank  of  N.  Y.  v.  Bigler. 

Nat.  B'k  of  Northampton  v.  Mass.  Loan 
&  Trust  Co. 

National  Bank  v.  Matthews. 

Nat.  Bank  of  G.  v.  Place. 

Nat.  B'k  of  Poultney  v.  Lewis. 


Nat.  Bank  of  Washington  v.  Texas. 

National  Ins.  Co.  v.  Webster. 

Nat.  Mech.  B'k  Ass'n  v.  Conkling. 

Nathans  v.  Hope. 

Nat.  Fire  Ins.  Co.  v.  Sackett. 

Nehrboss  v.  Bliss. 

Neftel  v.  Lightstone. 

New   Hope   &   Delaware   Bridge   Co.  v. 

Phoenix  Bank. 
Nelson  v.  First  Nat.  Bank. 
New  Orleans  Canal  &  B'k'g  Co.  v.  Mont* 

gomery. 

New  Providence  v.  Halsey. 
Newell,  et  al.  v.  Smith,  et  al. 
Newell  v.  Nixon. 
Newcomb  v.  De  Roos. 
Newman  v.  McGregor. 

v.  Wait. 
Newton  v.  Allen. 

v.  Kennerly. 

v.  Newton. 

v.  Porter. 

v.  Russell. 

N.  Y.  Farmer's  Ins.  Co.  v.  Ely. 
New  York  Fire  Ins.  Co.  v.  Donaldson. 
New   York  Guardian  Ins.   Co.   v.   Glea- 

son. 

N.  Y.  Ins.  Co.  v.  Albro. 
New  York  Mut.  Life   Ins.  Co.   v.  Arm- 
strong. 

N.  Y.  S.  L.  and  Trust  Co.  v.  Hemer. 
Nicholas  Connell  v.  Alexander  Hill. 
Nichols  v.  Allen. 
Nicolay  v.  Unger. 
Nickerson  v.  Ruger. 
Nightingale  v.  City  Bank. 
Noar  v.  Gill. 
Noble  v.  McFarland. 
Nolan  v.  B.  C.  &  N.  R.  R.  Co. 
Noonan  v.  Bradley. 
Nopson  v.  Horton. 
Norman  v.  Conn. 

Northampton  M.  L.  Ins.  Co.  v.  Tuttle. 
North'n  B'k  of  Kentucky  v.  Cooke. 
No.  F.  Ins.  Co.  v.  Wright. 
Northford   Rivet  Co.  v.  Blackmail  MPg 

Co. 

North  River  Bank  v.  Aymer. 
Norton  v.  Dryfuss. 
Nourse  v.  Henshaw. 
Noyes  v.  Barnett. 
Nugent  v.  Wolfe. 
Nunez  v.  Dantel. 

Oberman  v.  Hoboken  City  Bank. 
Ober  v.  Gallagher. 

v.  Smith. 
O'Brien  v.  Petitioner. 

v.  Stevenson,  et  aL 
O'Brien  v.  Strong. 
O'Connor  v.  Clarke, 
v.  Kempt. 


586 


TABLE   OF   CASES   CITED. 


Odell  v.  Greenly. 

Oelrich  v.  Spain. 

Oertel  v.  Schroeter. 

Oganne  v.  Abraham  Haber. 

Ogden,  Etc.  v.  Redd. 

Ogden,  R.  N.  v.   A.  Marchand. 

O'Hara  v.  Mrs.  E.  Booth  &  Connell. 

O'Hare  v.  National  Bank. 

Old  Dominion  Granite  Co.,  et  al.  v. 
Clarke,  et  al. 

Oliver,  use  of  Griffith  v.  Lowry. 

O'Meara  v.  Halbrook. 

Oregon  S.  S.  Co.  v.  Otis. 

Ormsbee  v.  Kidder,  et  al. 

Osborn  v.  Byrne. 

Oskaloosa,  The  College  v.  Hickok. 

Orchard  v.  Hughes. 

Ormes  v.  Dauchy. 

Overall  v.  Bezeau. 

Otis,  et  al.  v.  Cullon,  Receiver. 

Overend,  Gurney  &  Co.  v.  Oriental  Finan- 
cial Corporation. 

Oxnara  v.  Varnum. 

Pacand    v.   The  Corporation  of  Halifix, 

South. 

Paddicord,  et  al.  v.  Connard. 
Paddleford  v.  Thacher. 
Page  v.  Waring. 
Paine  v.  Benton. 
v.  Caswell. 
v.  Noelke. 
v.  Upton. 
Pain  v.  Packard. 
Palmer  v.  Howard, 
v.  Hussey. 
v.  Palmer, 
v.  Purdy. 

Pape  v.  Capital  Bank. 
Paris,  et  al.  v.  Moe,  Adm'r. 
Parker  v.  Baxter. 

v.  Hinckley  Locomotive  Works, 
v.  McKenna. 

Parkinson  v.  City  of  Parker. 
Parmelee  v.  Simpson. 
Parshall,  S.  P.  v.  Lamoreaux. 
Parsons'  Bills  &  Notes. 
Parsons  Sav'gs  Bank  v.  Sargent,  et  al. 
Patee  v.  Pelton. 
Paterson  Sav'gs  Bank  v.  Brush. 
Paterson  v.  Taylor. 
Paton  v.  Coit. 
Patterson  v.  Carrell. 
v.  Lailey. 
Pattison  v.  Vaughn. 

v.  Syracuse  Nat.  Bank. 
Patton  v.  Coen  &  Ten  Broeke. 

v.  Hughesdale. 
Pauling  v.  Creagh. 
Paul  v.  Logansport  Nat.  Bank. 
Paul  Mack  v.  C.  E.  Fortier,  et  al. 
Pavey  v.  Pavey. 


Payne  v.  Becker. 

v.  Cave. 

Payser  v.  Citizen's  Mut.  Ins.  Co. 
Pecker  v.  Silsby. 
Pence  v.  Gale. 

v.  Langdon. 
Fender  v.  Kelley. 

Penn.  Bank,  to  use  v.  Hopkins,  et  al. 
Penn.  Coal  Co.  v.  Blake. 
Penn  Match  Co.  v.  Hapgood. 
Pennock  v.  McCormick. 
People's  Bank  v.  Bogart. 
People  v.  Bank  of  North  America. 

v.  D'Argeneour. 

v.  Doty. 

People,  et  al.  v.  Storms. 
People,  ex  rel.  Thurman  v.  Ryan. 
People,  ex  rel.  Ainslee  v.  Hewlett. 
People,  ex  rel.  v.  Com'r's  of  Taxes, 
People  v.  Equitable  Trust  Co. 
People,  ex  rel.  Ins.  Co.  v.  Comr's. 
People  v.  Mayor. 

v.  Mer.  and  Mech.  Bank. 

v.  M.  &  T.  Sav'gs  Inst'n. 

v.  Nat.  Gold  Bank. 

v.  National  Trust  Co. 

v.  Security  L.  Ins.  Co. 
Peoples'  Sav'gs  Bank  v.  Bates. 
Per  Breese.  J.  Brown  v.  Smith. 
Pargond  v.  Richardson. 
Perkins  v.  Barstow. 

v.  Guy. 

v.  Littlefield. 

v.  McDuffee. 
Perley  v.  Spring. 

Persom  v.  Com.  Exchange  Bank. 
Perrin  v.  Kellogg. 
Peru  v.  Turner. 
Petrie  v.  Meyer,  et  al. 
Pettigrew  v.  Summers. 
Peugh  v.  Davis. 
Philadelphia  v.  Lockhard. 
Philbrick  v.  Dallett. 
Phelps  v.  Murray: 
Philip's  Academy  v.  Davis. 
Phillips  v.  Bullard. 

v.  Evans.- 

Phillips,  et  al.  v.  Howell. 
Philpot  v.  Bryant. 

v.  Gruninger. 
Phipps  v.  Milbury  Bank. 
Phcenix  Ins.  Co.  v.  Church. 
Picot  v.  Signiago. 
Pickering  v.  Day. 
Pickersgill  v.  Lahens. 
Pickett,  et  al.  v.  Merch.  Nat.  B'k  of  Mem- 
phis, et  al. 
Pier  v.  George. 

v.  Hanmore. 
Piedmont  &  Arlington  Ins.  Co.  v.  Ewing, 

Admr. 
Pierce  v.  Parker. 


TABLE  OP   CASES   CITED. 


587 


Pierson  v.  Atlantic  Nat.  Bank. 

Pike,  Brother  &  Co.  v.  Hart  &  Hebert. 

Pillow  v.  Wade  and  wife,  et  al. 

Pinard  v.  Klockmann. 

Pittman  v.  McClellon. 

Plaisted  v.  Palmer. 

Planters'  and  Farmers'  Nat  B'k  V.  Nat 

B'k  of  Wilmington. 
Planters'  Bank  v.  Union  Bank. 
Plainer  v.  Plainer. 
Poillon  v.  Lawrence. 
Pollard,  Adm'r  v.  Bowen. 
Pollard  v.  Bailey. 
Pollock  v.  Ray. 
Pomeroy  v.  Pomeroy. 
Pond  v.  Kim  ball. 
Poole  v.  Dyer. 
Pooley  v.  Brown. 

v.  Harridine. 
Pope  v.  Bank  of  Albion. 
Popple  v.  Day. 
Post  v.  Stiger. 
Potter  v.  Douglass. 
Potts  v.  Hart. 

v.  Mayer. 

Poucher  v.  Blanchard. 
Powell  v.  Jones. 
Powers  v.  Benedict. 

v.  Silberstein. 
Prall  v.  Tilt. 
Pratl  v.  Eaton. 

v.  Elkins. 

v.  Short. 

v.  Taunton  Copper  Co. 
Prentiss  v.  Danielson. 
Pretlow  v.  Bailey's  Ex'r,  et  aL 
Pribble  v.  Kent. 
Price  v.  Keen. 

v.  Mahoney. 

v.  Trusdell. 
Prime  v.  Cobb. 
Prince  v.  Oriental  Bank. 
Prior  v.  White. 

Pritchard  v.  Jonson  &  Calhoun. 
Prouty  v.  Roby. 

v.  Wilson. 

Propeller  v.  Mohawk. 
Prov.  Assurance  Co.  v.  Nat  Bank. 
Providence  Tool  Co.  v.  United  States  Mf  'g 

Co. 

Pugh  v.  Cameron,  Adm'r. 
Putman  v.  Clark. 
Pyne  v.  Kinna. 

Queckenbush  v.  Leonard. 
Quillen  v.  Arnold. 
Quimby  v.  Dill. 
Quincy  v.  Hall. 

Ragan  v.  Day,  et  al. 
Randall,  et  al.  v.  Higbee. 
Randall  v.  Sackett 


Rankin  v.  Shaeffer,  Admr. 
R.  N.  Ogden  v.  A.  Marchond. 
Raphael  v.  Bank  of  England. 
Railway  Co.  v.  Allenton. 
v.  Howard. 

Railroad  Co.  v.  Bank  of  Ashland, 
v.  Hodgens. 
v.  Jones. 

Ratcliffe  v.  Smith. 
Raubitschek  v.  Blank. 
Rawson  v.  Taylor. 
Raymond  v.  Bearnard. 
Raynor  v.  Pacific  Nat.  Bank. 
Ray  v.  Simmons. 

Real  Estate  Sav'gs  Inst.  v.  Linder. 
Receiver  of  Ocean  B'k  v.  Estate  of  Wild. 
Receiver  of  New  Amsterdam  Sav'gs  Bank 

v.  Tartter. 

Reder  Life  Raft  Co.  v.  Roach. 
Reed  v.  Bank  of  Newburgh. 
Reed,  Crone  &  Co.  v.  Kremer  &  Co. 
Reed  v.  Eastman. 

v.  Reeves,  Adm'r. 
v.  Woodman. 
Reel  v.  Ewing. 
Reedy  v.  Brunner  &  Co. 
Reeves  v.  State  Bank  of  Ohio. 
Reevill  v.  Donaldson. 
Regan  v.  Jones. 
Reid,  et  al.  v.  Warner. 
Reinheimerv.  Carter. 
Renshaw  v.  Richards. 
Remington  v.  Staats. 
Renckley  v.  Railroad  Co. 
Rem.  Paper  Co.  v.  O'  Dougherty. 
Renshaw,  Henry  v.  A.  Keene  Richards. 
Reppely  v.  Ramsden. 
Reuter,  et  al.  v.  St.  Louis,  et  al. 
Reynolds  Adm'r  et  al.  v.  West. 
Reynolds  v.  Cleveland, 
v.  Rondabush. 
Reznor  v.  Supplee. 
Rhodes  v.  Williams. 
Rice  v.  Smith. 
Richardson  v.  Draper. 

v.  Grandy,  et  al. 

v.  Hewitt. 

v.  Hughitt. 

v.  McKim. 

Richardson  &  May  v.  Lightcop. 
Richardson  v.  Pierce. 
Richards  v.  Hountze. 
Richer  v.  Voyer,  et  al. 
Rickwell  v.  Comstock. 
Ridgeway  v.  Farmers'  Bank. 
Right  of  entry  against  heirs  of  the  mort- 
gagor. 

Rigoney  v.  Nieman. 
Rindge  v.  Kimball. 
Ringling  v.  Kohn,  et  al. 
Risley  v.  Phoenix  Bank. 
Rittenhouse  v.  Ammerman. 


588 


TABLE   OF   CASES   CITED. 


Ritter  v.  Singmaster. 
Rixford  v.  Miller,  et  al. 
Roach  v.  Karr. 
Robbins  v.  Dellaye. 

Robert   H.   Hartley  v.  City  of  New  Or- 
leans. 

Robertson  v.  Cauble. 
Roberts,  et  al.  v.  Jacks. 

v.  Woven  Wire    Mattress 
Co. 

Roberts  v.  Plainsted. 
v.  Stewart. 
v.  Taft. 
Robinson  v.  Chemical  Nat.  Bank. 

v.  Larrabee. 

v.  Nat.  Bank  of  Newborne. 

v.  Reed,  et  al. 

v.  Talbot. 
Robson  v.  Bennett. 

Robson,  et  al.  v.  Mich.  Central  R'y  Co. 
Rodabaugh  v.  Pitkin. 
Roe  v.  Barker. 

Roehner  v.  Knickerbocker  Life  Ins.  Co. 
Rogers  v.  Vaughn. 

v.  Vosburgh. 
Rooker  v.  Rooker. 
Roop  v.  Delahaye. 
Roosevelt,  et  al.  v.  Davis. 
Rose  v.  Bridgeport. 
Rose  &  Co.,  et  al.  v.  Brown,  et  ux. 
Rosenbark  v.  M.  &  B.  Bank. 
Rosenblatt  v.  Johnston. 
Rosier  v.  Hale. 
Ross  v.  Boswell. 
v.  Doland. 
v.  Hood, 
v.  Jones. 

Ross,  Respt  v.  Terry,  Applt. 
Ross  v.  Wilson. 

Rossiter  v.  Trafalgar  Life,  A.  A, 
Rowell  v.  Mitchell. 

Royal  Canadian  Bank  v.  Wilson,  et  aL 
Ruefle  v.  Moore,  et  al. 
Rugg  v.  Moore. 
Runds  v.  Harding,  et  al. 
Ruppert  v.  Haug. 
Russell  v.  Allerton. 
Russell,  et  al.  v.  Thatcher,  et  aL 
Rutherford  v.  Talent. 
Ryan,  et  al.  v.  Malo. 
Ryan  v.  Dunphy. 

Saco  Nat.  Bank  v.  Sanborn. 

Sadler's  Adm'r  v.  Kennedy's  Adm'rx. 

Safe  Deposit  Co.  v.  Pollock. 

Safford  v.  McDonough. 

Saint  v.  Smith. 

Salem  Bank  v.  Gloucester  Bank. 

Sales  v.  Sims. 

Salisbury  v.  Howe. 

Salter  v.  Burt. 

Salt  Lake  City  Nat.  B'k  v.  Hendrickson. 


Sampson  v.  Sampson. 
Samstag,  et  al.  v.  Conley,  et  al. 
Samual  A.  Tripp,  et  al.  v.  Curtenias,  et  al. 
Samual  &  A.   W.  Smith  v.  Crescent  Citj 
Live     Stock    Landing  &   Slaughter 
House  Co. 
Sanborn  v.  Adair. 
v.  Cree. 

Sanford  v.  Hays. 
Sanders  v.  Adeline  Edwards. 

v.  Eldridge,  et  al. 
Sanders,  et  al.  v.  Gooding,  et  al. 
Sarbach  v.  Jones. 
Sattler  &  Co.  N.  Leonard  Marine. 
Satherland  v.  Olcott 
Saulsbury,  Respers  &  Co.  v.  Blandys. 
Saunders  v.  Reilly. 
Savage  v.  Scott,  et  al 

v.  Sherman. 
Sawyer  v.  Hoag. 
Saxon  v.  Hill. 
Scheland  v.  Erpelding. 
Schaefer,  et  al.  v.  Gildea,  et  aL 
Schell  v.  Devlin. 
Schencho  v.  Meier. 
Schindel  v.  Gates. 
Schnepel  v.  Mellen. 
Schmidlapp  v.  Currie. 
Schmidlopp  v.  Currie. 
Schmidt  and  Zeigler  v.  Sandal,  et  aL 
Schmitz  v.  Langhaar. 
Schmucker,  et  al.  v.  Sibert,  Assignee. 
Schoefer,  et  al.  v.  Gildea,  et  al. 
Scholey  v.  Ramsbottom. 
Scollans  v.  Flynn. 
Schoen  v.  Houghton. 
Schonberg  v.  Cheney. 
Schoop  v.  Clarke. 
Scott  v.  Fields. 

v.  Ocean  Bank. 

v.  Shirk. 

Schrauth  v.  Dry  Dock  Sav'gs  Bank. 
Schroeder  v.  Central  B'k  of  London* 
Schuchardt  v.  Stanley. 
Scudder  v.  Union  Nat.  Bank. 
Schuele  v.  Reiman. 
Schultz  v.  Hoagland. 
Scullion  v.  Perry,  et  al. 
Schumpert  v.  Dillard,  Pinson  &  Co. 
Schumucker  v.  Sibert. 
Schultz  v.  Hoagland. 
Schuylkill  Co.  v.  Copley. 
Sea  v.  Glover. 
Seamans  v.  Burt. 
Seammon  v.  Kimball,  Assignee. 
Searight  v.  Payne. 
Seaton  v.  Scovill. 
Seaver  v.  Lincoln. 

Second  Nat.  B'k  of  Cincin.  v.  Hemingraf, 
Second  Nat.  Bank  v.  Miller. 
Second  Nat.  Bank  of  Oswego  v.  Burt. 
Second  Nat.  B'k  v.  Teeters. 


TABLE   OF   CASES   CITED. 


589 


Security  Bank  v.  Nat.  B'k  of  the  Repub- 
lic. 

See  In  re  Bradner. 

See  Newton  v.  Russell. 

See  Nolan  v.  B.  C.  &  N.  R.  R.  Co. 

Selden  v.  Preston. 

Semple,  et  al.  v.  Atkinson,  et  aL 

Serrae  Hijo  v.  Hoffman  &  Co. 

Serviss  v.  McDonnell. 
v.  Stockstile. 

Seventh  Nat.  Bank  v.  Cook. 

Sevin  &  Gourdain,  in  Liquidation  v.  Theo- 
gene  Caillonet. 

Seybolt  v.  N.  Y.  L.  E.  &  W.  R.  R. 

Seymour  v.  Colburn. 

v.  Continental  Life  Ins.  Co. 
v.  Strong. 

Shackelford  v.  Hooper. 

Shaler  v.  Trowbridge. 

Shane  v.  Lowry. 

Shattuck  v.  Bascom. 

Shaw  v.  Cock. 

Shepard  v.  Gilroy,  et  al. 

Shepherd  v.  Henrickson. 

Shepler  v.  Scott. 

Sherman  v.  Black. 

Sherewood  v.  Snow,  Foote  &  Co. 

Shillaber  v.  Robinson. 

Shirts  v.  Ison. 

Shoe  and  Leather  Nat.  B'k  v.  Dix. 

Shoemaker  v.  King. 

Shokeeker  v.  Farmers'  Bank. 

Short  Mt.  Coal  Co.  v.  Hardy. 

Shriver  v.  Shriver. 

Shroser  v.  Isaacs. 

Siebeneck  v.  Anchor  Sav'gs  Bank. 

Silsby  v.  Trotter. 

Silvens  v.  Porter. 

Simmons  v.  Sav'gs  Society. 

Simpson  v.  Bovard. 
v.  Davis. 

Singer  Manfg.  Co.  v.  Hudson. 

Sistare  v.  Best. 

Skrine  v.  Lewis. 

Slater  v.  Breeze. 

Sledge  v.  Swift,  Murphy  &  Co. 

Slossom  v.  Duff. 

Slyeke  v.  Mills. 

Small  v.  Clarke. 

Smart  v.  Bowmanville    Machine    Imple- 
ment Co. 

Smarr  v.  Schnitter. 

Smedes  v.  B'k  of  Utica. 

Smeltzer  v.  White. 

Smidt,    Adm'x  v.    Chicago    and    North- 
western R'y  Co.,  et  al. 

Smith  v.  Appleton. 
v.  Carroll, 
v.  County. 

Smith,  et  al.  v.  Browne,  et  al. 

Smith,  E.  v.  Erwin. 

Smith,  et  al.  v.  Mayer,  et  al. 


Smith,  et  al.  v.  State,  use  of  County  Com'rs 
of  Baltimore. 

v.  Stephenson,  et  al. 
v.  Vodges,  Assignee. 
Smith  v.  Frankfield. 

v.  Hathorn. 

v.  Holbrook. 

v.  Jones. 

v.  Ix>wnsdale. 

v.  Miller. 

v.  Morse. 

v.  Munday. 

v.  Paton. 

v.  Poillon. 

v.  Sloan. 

v.  Smith. 

v.  Sorby. 

v.  Strout. 

v.  Union  Bank  of  London. 

v.  United  States. 
Smoot's  Case. 
Smyth  v.  K.  L.  Ins.  Co. 

v.  Munroe. 
Sohier  v.  Loring. 
Solinger  v.  Earle. 
Sooy  Ads.  State  of  New  Jersey. 
Soper  v.  Fry. 
Southard  v.  Benner,  et  al. 
South  Boston  Iron  Co.  v.  Brown. 
Soulie  v.  Ranson. 
Southwick  v.  First  Nat.  Bank. 
Spaulding  v.  Adams, 
v.  Backus. 
Spencer  v.  St.  Clair. 
Spinetti  v.  Atlas  S.  S.  Co. 
Spooner  v.  Holmes. 

v.  Thompson  and  wife. 
Sprague  v.  Hosmer. 
Springer,  et  al.  v.  Bartle. 
Spring,  Ex.  v.  Reed,  et  al. 
Springport  v.  Teutonic  Savings  Bank. 
Stacy  v.  Dane  Co.  Bank. 
Stagg  v.  Elliott. 
Staley  v.  Kneeland. 
Stanberry  v.  Moore. 
Stanley  v.  Chamberlain. 

v.  Whitney. 
Stanton  v.  Demervitt. 
St.  Joseph  M'f'g  Co.  v.  Daggett 
St.  Louis  Nat.  Stock  Yards  v.  O'Reilly, 

et  al. 

Starin  v.  Kelly. 
Stark  v.  Alford. 

v.  Sperry. 

Starr  v.  Mayer  &  Co. 
State  Bank  v.  Bank  of  the  Capital. 
State  v.  Brower. 

v.  Chapman. 
State  Bank  v.  Chetwood. 

v.  State. 

State,  ex  rel.  Billingsley  v.  Spencer. 
State,  et  al.,  Brown  v.  Baker,  et  aL 


590 


TABLE   OP   CASES   CITED. 


State,  ex  rel.  Freon  v.  Enterprise  Carriage 

Co. 
State,  ex  rel.  Louis  Fix  v.  F.  J.  Herron, 

Recorder  of  Mortgages,  et  al. 
State,  ex  rel.  Merchants'  v.  Daspit. 
State,  ex  rel.  John   Klein   &   Co.  v.  Ed. 

Philsbury,  Adm'r  of  Finance. 
State  Bank  of  Troy  v.  Bank  of  the  Capital. 
State,  ex  rel.  Martin,  et  al.  v.  N.  O.  & 

Carrollton  R.  R.  Co. 
State,  et  al.  v.  Potter. 
State  Ins.  Co.  v.  Gennett. 
State  Railroad  Tax  Cases. 
Stebbins  v.  Duncan. 
Steele  v.  Russell, 
v.  Souder. 

Steinbach  v.  Relief  F.  Ins.  Co. 
Stephens  v.  Bd.  Edn.  of  Brooklyn. 

v.  Murton. 
Sterling  v.  Stewart. 
Stettauer  v.  Carney. 
Stettauer  Bros.  v.  Carney  &  Stevens. 
Stettheimer  v.  Killip. 
Steuben  Co.  Bank  v.  Alberger. 
Stevens  v.  Rainwater. 
Stewart  v.  Davis. 

v.  Hopkins, 
v.  Johnson, 
v.  Salamon. 

Stillwell  v.  Mut.  Ins.  Co. 
Stitt  v.  Little. 
Stockham  v.  Stockham. 
Stockwell  v.  Holmes. 
Stone,  et  al.  v.  King,  et  al. 
Stone  v.  Marsh. 
Stoner  v.  Milliken,  et  al. 
Storm  v.  Cumberland. 
Stott,  et  al.  v.  Rutherford. 
Story  v.  Soloman. 
Stoughton  v.  Lynch. 
Stowell  v.  Raymond. 
Strause  v.  Josephthal. 
Strauss  v.  Wessel. 
Stratford  v.  Jones. 
Streit  v.  Waugh. 
Strong  v.  Blake. 

v.  Downing. 

Strong,  et  al.  v.  Shea,  et  al. 
Strong  v.  Foster, 
v.  Jackson. 

v.  The  State,  ex  rel.,  etc. 
Stults  v.  Silver. 
Sturne  v.  At.  M.  Ins.  Co. 
Succession  of  Bofenschen. 
Succession  of  Carmelite  Planchet 
Succession  of  Dougart. 
Succession  of  Margaret  McAuley. 
Succession  of  Wood. 
Sullivan  v.  Bonesteet. 

v.  Langley,  et  al. 
Surtwell  v.  Frost. 
jSuse  v.  Pompe. 


Sus.  Val.  Bank  v.  Loomis. 
Swain  v.  Seamens. 
Swift  v.  Junesbury. 
Sweetland  v.  Barrett. 

v.  Quidnick  Co. 
Sweetzer's  Appeal. 
Swive  v.  Francis. 
Sylvius  v.  Kosck. 
Synde  v.  The  County. 
Syracuse  Sav'gs  Bank  v.  T'n  Seneca  Falls. 

Tabor  v.  Van  Tassell. 
Taddiken  v.  Cautrell. 
Talbot,  et  al.  v.  Wilkins,  et  al. 
Talcott  v.  Henderson. 
Talft  v.  Larkin. 
Talmage  v.  Pell. 

v.  Third  Nat.  Bank. 
Tancil  v.  Seaton. 
Tapley  v.  Martin. 

Tappan,  Collector  v.  Merchants'  Nat.  B'k. 
Tappan  v.  Merchants'  Nat.  B'k  of  Chicago. 
Tarbell  v.  West. 
Tate  v.  Clements. 
Taylor  v.  Francoso. 
v.  Kymer. 

v.  Merchants'  Fire  Ins.  Co. 
v.  Trueman. 
v.  Wing. 
Thacker  v.  Bank  of  the  State  of  N.  Y. 

v.  Tracy. 
Thayer  v.  Finton. 
Terry  v.  Tubman. 

The  ^Etna  Ins.  Co.  v.  The  Alton  City  B'k. 
The  B'k  of  Upper  Canada  v.  Turcotte. 
The  City  Bank  v.  Hunter  &  Maitland. 
The  City  v.  Lamson. 
The  Co.  of  Vernon  to  use  of  School  Fund 

v.  Stewart. 
The  Davis  Sewing  Machine  Co.  v.  Mc- 

Ginnis,  et  al. 
The  Delaware. 

The  Eclipse  Windmill  Co.  v.  Thorron. 
The  Eddy. 

The  Edinburgh  Life  Ins.  Co.  v.  Allen. 
The  y£tna  Ins.  Co.  v.  The  Alton  City  Bank. 
The  Floyd  Acceptance. 
The  Franklin. 
The  Idaho. 
The  Kemball. 
The  Mary  Washington. 
Third  National  Bank  v.  Boyd. 

v.  Eastern  Railroad 
Co. 

Thomas,  et  al.  v.  Farmers'  Bank  of  Md. 
Thomas  v.  Hammond. 
v.  Richmond. 

Thompson  v.  Bank  of  South  Carolina, 
v.  Bowie, 
v.  Bowman. 
v.  Bowne. 
v.  Feagin. 


TABLE   OP   CASES   CITED. 


591 


Thompson  v.  Gray. 

v.  Johnson. 
v.  Taylor, 
v.  Whitmarsh. 
Thomson  v.  Bank  of  British  N.  Am. 

v.  MacGregor. 

v.  Lee. 

v.  Herter. 

v.  James. 

Thorne,  et  al.  v.  Prentiss. 
Thornton  v.  Kelly. 
Thorpe  Bros.  v.  Durbon,  et  al. 
Thos.  E.  Helm,  et  al.  v.  Meyer,  Weis  & 

Co. 

Thouron  v.  Pearson. 
The  Quebec  Bank  v.  Molson. 
The  S.  C.  &  St.  P.  R.   R.  Co.  v.  The 

County  of  Osceola,  et  al. 
The  Sally  Magee. 
The  State,  ex  rel.,  etc.  v.  Sherill. 
The  Thames. 

The  Vaughan  v.  Telegraph. 
Tibbetts  v.  Flanders. 
Ticonie  Bank  v.  Bagley. 
Tiemeyer  v.  Turnquist. 
Tiffany  v.  Boatman's  Institute. 

v.  National  B'k  of  Missouri. 
Tilden  v.  Blair. 
Tillman  v.  Davis. 
Tobey  v.  Ellis. 
Todd  v.  Shelbourne. 
Toland  v.  Spraugue. 
Town  of  S.  v.  Teutonia  S.  Bank. 
Town  of  East  Lincoln  v.  Davenport. 
Township  of  East  Oakland  v.  Skinner. 
Townsley  v.  Moore. 
Town  of  Queensburg  v.  Culver. 
Town  of  South  Ottawa  v.  Perkins. 
Towsley  v.  M. 
Towne  v.  Rice. 
Townsend  v.  Quinan. 

v.  Long. 
Town   of  Springport  v.  Teutonia   Sav'gs 

B'k. 

Tozier  v.  Crafts. 
Treadwell  v.  Archer. 

v.  Himmelmann. 
Trenton  Banking  Co.  v.  Duncan. 
Trenton  Mut.  Life  Ins.  Co.  v.  Johnston. 
Trevor  v.  Wood. 

Trieber  v.  Com.  Bank  of  St.  Louis. 
Tripp  v.  Curlessius. 
Truax  v.  Slater. 

v.  Van  Tassell. 
Truly  v.  Wanzer. 
Trustees,  etc.  v.  Gilmer. 
Turnbull  v.  Broch. 

v.  Payson. 
Trusk  v.  McGuire. 
Tuston  v.  Dufies. 
Turner  v.  Rogers. 
Tucker  v.  Tucker. 


Turlington  v.  Slaughter. 
Turner  v.  Samson. 

v.  Rogers. 

v.  Watkins,  et  al. 
Tuthill  v.  Morris. 
Twombly  v.  Cassidy. 
Tyner  v.  Stoops. 

Ulster  Bank  v.  Synott. 
Ulster  Co.  Bank  v.  McFarland. 
Underbill  v.  Phillips. 
Underwood  v.  Birdsell. 
Union  Dime  Sav'gs  Inst.  v.  Anderson. 
Union  Bank  v.  Johnson. 
v.  Laird, 
v.  Mott. 
Union  Gold  Mining  Co.  v.  Rocky  Mt.  Nat. 

B'k. 

Union  Ins.  Co.  v.  Grant. 
United  Society  of  Shakers  v.  Underwood. 
United  States  v.  Bank  of  Georgia, 
v.  Britton. 
v.  McGennis. 
v.  State  Bank. 
Union  Trust  Co.  of  N.  Y.  v.  Monticello 

and  Port  Jarvis  R.  R.  Co. 
Updegraft  v.  Edwards,  et  al. 
Upham  v.  N.  Y.  L.  &  T.  Co. 
Upton,   Assignee   v.   Nat.   B'k  of  South 

Reading. 
Upton  v.  Fribilock,  Supra. 

v.  National  B'k  of  South  Reading. 
Upham  v.  Hamill. 
Uranie  Berard  v.  Vincent  Boagni. 
Usher  v.  Hazeltine. 
Utica  Ins.  Co.  v.  Bloodgood. 
v.  Cadwell. 

Vallieres  v.  Roy. 

Van  Allen  v.  The  Assessors. 

Van  Auken  v.  Dunning. 

Van  Bemschooten  v.  Lawson. 

Van  Brunt  v.  Day. 

Vance  v.  Lowther. 

Vanderslice  v.  Knapp. 

Vanderveer  v.  Statesir. 

Van  Dyck  v.  McQuade. 

Van  Gelder  v.  Van  Gelder. 

Van  Patton  &  Marks  v.  Beals  &  Hammer. 

Van  Rensselaer  v.  Jones. 

Varney  v.  Hawes. 

Vason,  et  al.  v.  Reall,  Trustee. 

Vaughn  v.  Ferrall. 

Vaupell  v.  Woodward. 

Van  Wickle,  Jacob  C.  v.  Acie  Landry. 

Van  Wickle  v.  Merch.  &  Tr.  Ins.  Co. 

Van  Wyck  v.  Walters. 

Veazie  Bank  v.  Fenno. 

Veitinger  v.  Winkler. 

Vermilye  &  Co.  v.  Adams  Ex.  Co. 

Vermont  Cent.  R.  R.  v.  Clayes. 

Venner  v.  Futroye. 


592 


TABLE  OP   OASES   CITED. 


Vernol  v.  Vernol. 

Vickery  v.  Dickson. 

Viele  v.  Judson. 

Viles  v.  Bangs. 

Vogel  v.  St.  Louis  Museum  Opera  &  Fine 

Art  Gallery. 
Vose  v.  Wood  ford. 
Voss  v.  The  German  Am.  B'k  of  Chicago. 

Wade  v.  Guppinger. 
Wagner  v.  Freschl. 
Wager,  et  al.  v.  Halleck,  et  al. 
Waite  v.  Chandler. 

v.  Dowley. 
Waldron  v.  Richings. 
Walsh  v.  Blakely. 
Walker  v.  Bank  of  State  of  N.  Y. 

v.  France. 

Walker,  et  al.  v.  Abt.,  et  al. 
v.  Niles. 
v.  Wait,  et  al. 
v.  Walker. 
Walling  v.  Miller. 
Wanner  v.  Sisson. 
Ward  v.  Brandon. 
v.  Craig. 
v.  Howard, 
v.  Smith. 
v.  Stahl. 
v.  Winship. 
Wart  v.  Woolley. 
Warren  v.  Hoyslett. 
Warren  Bank  v.  Suffolk  Bank. 
Wast  v.  Mitchell. 
v.  Wooley. 
Watson  v.  Beabout. 
v.  Brightwell. 
v.  Henderson,  et  al. 
v.  Janion. 
v.  Jones. 

v.  Reynolds  &  Stuckey. 
Water  Valley  Mf  g  Co.  v.  Seaman. 
Wayne  Co.  Sav'gs  B'k  v.  Low. 
Way  v.  Hearn. 
v.  Smith. 
Wear  v.  Skinner. 
Wheat  v.  Cross. 
v.  Rice. 

Webb  v.  Buckelew. 
Webber  v.  Emmerson. 
Weber  v.  Fickey. 
Webster  v.  Upton,  Assignee. 
Weed  v.  Weed. 

Wheeler  v.  Conn.  Mut.  L.  Ins.  Co. 
Wheeler  v.  Newboulds. 

v.  National  Bank. 
Weeks  v.  Medler. 
W.  E.  Hamilton,  et  al.  v.  Nellie  Hodges, 

Tutrix,  et  al. 
Wehle  v.  Spellman. 
W.  F.  &  Co.  v.  Davis. 
Weigh  v.  Boylon. 


Weisser  v.  Denison. 
Welborn  v.  Coon. 
Welch  v.  Allington. 

v.  Goodwin. 
Welling  v.  Byerson. 
Wellington  v.  Jackson. 
Wells  v.  Caywood. 

v.  Milwaukee  Fire  Ins.  Co. 
Welsh  v.  Cochran. 

v.  Ger.  American  Bank. 
Wenman  v.  Ins.  Co. 
West  Boston  Sav'gs  B'k  v.  Thompson. 
West  Branch  Bank  v.  Fulmer. 
West  R.  R.  Co.  v.  Bayne. 
West  St.  Louis  Sav.  B'k  v.  Shawnee  Co. 

B'k. 

Westphal,  Hinds  &  Co.  v.  Moulton. 
West  Tr.  &  Coal  Co.  v.  Kliderhouse. 
Wm.  H.  Boullt  v.  Jerome  Sarpy,  et  al. 
Whetherill  v.  Bank  of  Pennsylvania. 
Whistler  v.  Forster. 
Whitaker  v.  Miller,  et  al. 
Whitney  Arms  Co.  v.  Barlow,  et  al. 
Whitney  v.  Cowan, 
v.  Esson. 

v.  First  Nat.  Bank  of  Attleboro'. 
v.  Merchants'  Union  Express  Co. 
White,  Bonner  &  Wright  v.  Stanley. 
White  v.  Chaffin. 
Whitehead  v.  Smith. 
White  v.  Kuntz. 

v.  Lucas. 

v.  Rintoul. 

Whiteside,  et  al.  v.  United  States. 
Whiteside  v.  Hyman. 
Whiting  v.  City  B'k  of  Rochester. 
Whiton  v.  Snyder. 
Whittemore  v.  Farrington. 
Whittlesey  v.  Spofford. 
Wichita  Sav'gs  B'k  v.  Atchinson,  Topeka 

&  St.  Fe.  R.  R.  Co. 
Widner  v.  Walsh. 
Wiggin  v.  Godwin. 
Wilbur  v.  Jernegan. 
Wilcox  v.  Cambell. 
Wilcox  Silver  Plate  Co.  v.  Green. 
Wilcoxson  v.  State. 
Wilder  v.  Seelye. 
Wiley  v.  Mahood,  et  al. 

v.  Nat.  B'k  of  Brattleboro. 

v.  Williamson. 
Wilkins  v.  Com.  Bank. 
Wilkinson  v.  Nat.  F.  Ins.  Co. 
Willard  v.  Taylor. 
Willets  v.  Phoenix  Bank. 
William  S.  Peterkin  v.  George  Martin. 
Williams  v.  Allen. 
v.  Ayens. 
v.  Cardwine. 
v.  Conger, 
v.  Ingersole. 
Williams,  et  al.  v.  Ewing  &  Fanning. 


TABLE   OF   CASES   CITED. 


593 


Williams,  et  al.  v.  Pungy,  et  al. 
Williams  v.  Pitts. 

v.  Powers. 

v.  St.  Louis,  Iron  Mt.  &  South'n 
R.  R.  Co. 

v.  Starr. 

v.  Suprs.  Wayne  Co. 

v.  Wallace. 

v.  Weaver. 

v.  Wentworth. 
Williamson  v.  New  Jersey  R.  R.  Co. 

v.  N.  J.  South'n  R.  R.  Co. 
Wills,  et  al.  v.  Claflin,  et  al. 
Wilmot  v.  Hurd. 
Wilson  v.  Elliott. 
Wilson,  et  al.  v.  King. 

v.  Ridgely,  et  al. 
Wilson  v.  First  National  Bank. 

v.  Gaines. 

Wilson  &  Hunting  v.  Jones,  et  al. 
Wilson  v.  Martin. 
v.  Rogers, 
v.  Russell, 
v.  Smith. 

Wilson  S.  M.  Co.  v.  Schnell. 
Winchell  v.  Crider. 
Winch  v.  Mut.  Benefit  Ice  Co. 
Wingate  v.  Mechanics'  Bank. 
Wing  v.  Hayford. 
Winkley  v.  Foye. 
Winne,  et  al.  v.  Col.  Sp'g  Co. 
Winslow  v.  Lane. 
Whiskaw  v.  Gilmour. 
Worman  v.  Kramer. 
Woods  v.  Armstrong. 
Wormall  v.  Reens. 
Woodbury  v.  Garth. 
Wood  v.  Amory. 
Woodruff  v.  Hill. 

38 


Wolf  v.  Fletemeyer. 

Woodside  v.  Adams. 

Woodward  v.  Suydam. 

Woodmansee  v.  Rogers. 

Wood  v.  Steele. 

Wood  &  Co.  v.  Merchants'  Savings,  Loan 

and  Trust  Co. 
Wood  v.  E.  R.  R.  Co. 

v.  Knapp. 
Woodruff  v.  Hurson. 

v.  Webb. 

Woods  v.  Matchett. 
Woodward  v.  Snydam. 
Wormley  v.  Hamberg,  et  al. 
Whr.  v.  Germ.  Luth'n  Ev.  Congre'n  of 

Baltimore. 
Wright  v.  Bigg. 

v.  Rankin. 

v.  Watt,  et  al. 

v.  Wilson. 

W.  Tr.  &  C.  Co.  v.  Kliderhouse. 
Wychoff  v.  Anthony. 
Wynen  v.  Schappert. 

Yendell  v.  Pugh. 
Yates  v.  Burch. 

Yerkes  v.  Nat.  Bank  of  Port  Jervis. 
York  v.  Pierson. 
Young  v.  Bushnell. 

Young  &  Conant  MPg  Co.  v.  Waterfield. 
Young  v.  Durgin. 
v.  Godbe. 

Zane  v.  Kennedy. 

Zantzingers  v.  Gunton. 

Zekind  v.  New  Kirk. 

Zelle,  et  al.  v.  German  Sav'gs  Institution. 

Zimmerman  v.  Hinkle. 

Zomtlein  v.  Brain. 


ABBREVIATIONS  EMPLOYED  IN  CITING 
LAW  REPORTS. 


Abb.  Adm.  (U.  S.) Abott's  Admiralty,  U.  S.  District,  Southern  Dist. 

of  N.  Y. 

Abb.  (U.  S.) Abbott's  U.  S.  Circuit  and  District  Courts. 

Abb.  Pr.  (N.  Y.) Abbott's  Practice,  Various  Cts. 

Abb.  N.  C.  (N.  Y.) Abbott's  New  Cases,  Various  Cts. 

Abb.  Pr.  N.  S.  (N.  Y.) Abbott's  Practice,  New  Series,  Various  Cts. 

Abb.  App.  Dec.  (N.  Y.)      ....  Abbott's  New  York  Court  of  Appeals. 

Add.  (Pa.) Addison's    Penn.    County    Court,  and    Court    of 

Errors. 
Aik.  (Vt.) Aiken,  Vt.  Supreme  Court. 

A.  K.  Marsh.  (Ky.) A.  K.  Marshall's  Court  of  Appeals. 

Ala.  N.  S.  (Ala.) Alabama  Sup.  Ct.,  New  Series. 

Ala.  Sel.  Cas.  (Ala.) Alabama  Select  Cases,  Ala.  Sup.  Ct. 

Alden,  (Penn.) Alden's  Condensed  Reports. 

Allen,  (Mass.) Allen's  Mass.  Supreme  Court. 

Anth.  (N.  Y.) Anthon's  N.  Y.  Cases  at  Nisi  Prius. 

Ariz Arizonia  Rep's  Territorial  Courts. 

Ark Arkansas  Sup.  Court. 

Ashm.  (Pa.) Ashmead,  Penn.  Various  Courts. 

Bailey,  (S.  C.) .  Bailey,  South  Carolina  Ct.'s  of  Appeal. 

Bailey,  Eq.  (S.  C.) Bailey's  Equity,  S.  C.  Ct.  of  Appeal. 

Ban.  &  A.  Pt.  (U.  S.  C.)    .     .     .     .  Banning  &  Arden's  Patent  Rpt's,  Circuit  Ct. 

Bankr.  Reg Bankruptcy  Register,  New  York. 

,  Barb.  (N.  Y.) Barbour's  N.  Y.  Supreme  Court. 

Barb.  Ch.  (N.  Y.) Barbour's  N.  Y.  Court  of  Chancery. 

Bay,  (S   C.) Bay's  South  Carolina,  Various  Cts. 

Beas.  Ch.  (N.  J.) Beasley's  New  Jersey  Ct.  of  Chancery,  and  of  Er- 
rors and  Appeals. 

Bee,  Adm.  (U.  S.) Bee's  Admiralty,  U.  S.  District  Cts. 

Ben.  (U.  S.) Benedict's  U.  S.  District  of  Southern  District  of 

New  York. 

Benn.  (Dak.  T.) Bennett's  Dakota  Reports. 

Bibb,  (Ky.) Bibb's  Kentucky  Ct.  of  Appeals. 

Binn.  (Pa.) Binney's  Penn.  Supreme  Ct. 

Biss.  C.  Ct.  (U.  S.) Bissell's  U.  S.  Seventh  Circuit  Ct. 

Black,  (U.  S.) Black's  I/.  S.  Supreme  Court. 

Blackf.  (Ind.) Blackford's  Indiana  Supreme  Ct. 

Bland,  (Md.) Eland's  Md.  High  Ct.  of  Chancery. 

Blatchf.  (U.  S.) Blatchford's  U.  S.  Second  Circuit  Ct. 

Blatchf.  &  H.  (U.  S.) Blatchford  &  Rowland's  Admiralty,  U.  S.  District 

Court.  South.  District,  N.  Y. 

Blatchf.  P.  C.  (U.  S.) Blatchford's  Prize  Cases,  South.  Dist.  of  N.  Y. 

Bloom.  Man.  Cas.  (N.  J.)  ....  Bloomfield's  Manumission  Cases. 

B.  Mon.  (Ky.) B.  Monroe's  Kentucky  Ct.  of  Appeals. 

Bond,  (IL  S.) Bond's  Sixth  Dist.,  U.  S.  Circuit  Ct. 

Bosw.  (N.  Y.) Bos  worth's  N.  Y.  City  Superior  Ct 

Bra-.lf.  (N.  Y.) Bradford's  N.  Y.  Surrogate's  Ct. 

Brad.  App.  (111.) Bradwell's  Illinois  Appellate  CL 

(594) 


INDEX   OF  ABBREVIATIONS.  595 

Brayt.  (Vt.) Brayton's  Vermont  Superior  Court. 

Breese,  (111.) Breese's  Illinois  Sup.  Court  Reports. 

Brev.  (S.  C.) Brevard's  S.  Carolina  Constitutional  County  and 

District  Ct. 

Brews.  (Pa.) Brewster,  Penn.  Various  Courts. 

Bright.  (Pa.) Brightly's  Ct.  of  Nisi  Prius  at  Phila.,  and  Penn. 

Supreme  Ct.,  IV.  Circuit. 

Brock.  (U.  S.) Brockenbrough's  U.  S.  Circuit  Ct.,  IV.  Circuit 

Brown,  (U.  S.) Brown's  Admiralty,  U.  S.  District  Ct. 

Brown,  (Mic.) Brown's  Michigan  Nisi  Prius  Cases. 

Browne,  (Pa.) Browne's  Penn.  Ct.  of  Common  Pleas. 

Burn.  (Wis.  T.) Burnet's  Wis.  Territorial  Supreme  Ct. 

Bush.  Eq.  (N.  C.) Busbee's  North  Carolina  Sup.  Ct.  in  Equity. 

Busb.  L.  (N.  C.) Busbee's  N.  C.  Supreme  Ct.  at  Law. 

Bush,  (Ky.) Bush's  Kentucky  Ct.  of  Appeal. 

Cai.  (N.  Y.) Caine's  N.  Y.  Supreme  Court. 

Cai.  Cas.  (N.  Y.) Caine's  Cases,  N.  Y.  Court  of  Errors. 

Cal.  (Cai.) California  Supreme  Court. 

Call,  (Va.) Call's  Virginia  Ct.  of  Appeals. 

Cam.  &  N.  (N.  C.) Cameron  &  Norwood's  N.  Carolina  Court  of  Con- 
ference. 

Ch.  (U.  S.)    . ' Chancery  Reports. 

C.  Ct Circuit  Court  Reports. 

Chand.  (Wis.) Chandler's  Wisconsin  Supreme  Ct. 

Chase,  (U.  S.) Chase's  U.  S.  IV.  Circuit  Ct.  (old). 

Cheves,  (S.  C.) Cheves'  S.  Carolina  Court  of  Appeals. 

Cheves,  Ch.  (S.  C.) Cheves'  S.  Carolina  Ct.  of  Appeals  in  Chancery. 

Chi.  L.  N.  (111.) Chicago  Legal  News. 

Chip.  D.  (Vt.) D.  Chipman's  Vermont  Sup.  Ct.  Rept's. 

Chip.  N.  (Vt.) N.  Chipman's  Vt.  Supreme  Ct.  Reports. 

Cin.  (Ohio) Cincinnati  -Superior  Court  Reports. 

Cir.  Ct Circuit  Court. 

City  Hall  Rec.  (N.  Y.) Roger's  City  Hall  Recorder,  Various  Courts. 

Cit. Citations  from  Quincy  to  122  Mass.  Reports. 

Clarke,  Ch.  (N.  Y.) Clarke's  N.  Y.  Court  of  Chancery. 

Clarke,  L.  J.  (Pa.) Clarke's  Penn.  Law  Journal. 

Cliff.  C.  Ct.  (U.  S.) Clifford's  U.  S.  First  Circuit  Court. 

Code,  R.  (N.  Y.) Code,  N.  Y.,  New  Series,  Various  Courts. 

Col.  Cas.  (N.  Y.) Coleman's  Cases,  N.  Y.  Supreme  Ct 

Col.  &  C.  Cas.  (N.  Y.) Coleman  &  Caine's  Cases,  N.  Y.  Supreme  Ct 

Colo.  S.  Ct.  R.  (Col.) Colorado  Supreme  Court  Reports. 

Colow.  (Tenn.) Coldwell's  Tenn.  Supreme  Ct.  Reports. 

Conf.  (N.  C.) Cameron  &  Norwood's  Conference  Reports. 

Conn.  (Conn.) Connecticut  Supreme  Court  of  Errors. 

Const.  N.  S.  (S.  C.) Mill's  Rept's,  S.  C.  Constitutional  Court. 

Const.  T.  (S.  C.) Treadway's  Constitutional  Ct.  Reports. 

Cooke,  (Tenn.) Cooke's  Tenn.  Sup.  Court  Reports. 

Cooper,  Ch.  (Tenn.) Cooper's  Tenn.  Supreme  Ct.  Reports. 

Cow.  (N.  Y.) Cowen's  N.  Y.  Supreme  Court  and  Court  of  Errors. 

Coxe.  (N.  J.) Coxe's  New  Jersey  Sup.  Court  Reports. 

Crabbe,  (U.  S.) Crabbe's  U.  S.  Eastern  Dist.  Ct.  of  Penn. 

Cranch,  (U.S.) Cranch's  U.  S.  Supreme  Court. 

Cranch,  C.  Ct.  (U.  S.) Cranch's  U.  S.  Circuit  for  the  District  of  Columbia. 

Court  of  Cl.  (D.  C.) '.    .  Court  of  Claims,  Washington,  D.  C. 

Curt.  Dec.  (U.  S.) Curtis'  Decisions,  United  States  Reports. 

Curt.  C.  C.  (U.  S.) Curtis'  U.  S.  Circuit  Ct.,  First  District. 

Cush.  (Mass.) Cushing's  Mass.  Supreme  Ct.  Reports. 

Dak.  T Dakota  Territorial  Supreme  Ct. 

Dall.  (U.  S.) Dallas' U.  S.  (old)  Courts  and  Courts  of  Penn. 

Daly,  (N.  Y.) Daly's  N.  Y.  Ct.  of  Common  Pleas. 


596  INDEX  OF   ABBREVIATIONS. 

Dana,  (Ky.) Dana's  Kentucky  Ct.  of  Appeals. 

Davies,  Dist.  (U.  S.) Davies'  U.  S.  Dist.  Ct.  of  Maine. 

Day,  (Conn.) Day's  Conn.  Supreme  Ct.  of  Errors. 

Deady,  (U.  S.) Deady's  U.  S.  Courts  of  Cal.  and  Oregon. 

Del.  Ch.  (Del.) Delaware  Chancery  Court  Reports. 

Den.  (N.  Y.) Denio's  N.  Y.  Sup.  Court  and  Court  of  Appeals. 

Desau.  (S.  C.) Desaussure,  S.  C.  Ct.  of  Chancery  and  Ct.  of  Ap- 
peals. 

Dev.  Ct.  of  Cl.  (D.  C.) Devereux's  U.  S.  Court  of  Claims. 

Dev.  Eq.  (N.  C.) Devereux's  North  Carolina  Sup.  Ct.  in  Equity. 

Dev.  L.  (N.  C.) Devereux's  N.  C.  Supreme  Ct.  at  Law. 

Dev.  &  B.  (N.  C.) Devereux  &  Battles'  N.  C.  Sup.  Ct.  in  Equity. 

Dill.  (U.  S.) Dillon's  U.  S.  Circuit  Ct,  VIII.  Circuit. 

Disney,  (Ohio) Disney's  Cincinnati  Supreme  Court. 

Dist.  (U.  S.) District  Court  Reports. 

Dougl.  (Mich.) Douglass'  Mich.  Supreme  Ct.  Repoits. 

Dudley,  (Ga.) Dudley's  Georgia  Sup.  Ct.  Reports. 

Dudley,  (S.  C.) Dudley's  South  Carolina  Ct.  of  Appeals. 

Duer,  (N.  Y.) Duer's  N.  Y.  City  Superior  Ct.  Reports. 

Dutch.  (N.  J.) Dutcher's  New  Jersey  Ct.  of  Appeals. 

Duv.  (Ky.) Duval's  Kentucky  Court  of  Appeals. 

Edm.  Sel.  C.  (N.  Y.) Edmond's  Selected  Cases,  N.  Y.  Various  Ct's. 

Edw.  Ch.  (N.  Y.) Edward's  N.  Y.  Vice  Chancellor's  Court  and  Su- 
preme Court. 
Eq ,     .     .     .  Equity  Reports. 

Fairfield,  (Me.) .  Maine  Supreme  Court  Reports. 

Fish.  Pr.  Cas.  (U.  S.) Fisher's  Prize  Cases,  Penn.  District  Ct. 

Fish.  Pat.  Cas.  (U.  S.) Fisher's  Patent  Cases,  U.  S.  Circuit  Courts. 

Fish.  Pat.  Rpt.  (U.  S.) Fisher's  Patent  Reports,  U.  S.  Circuit  Ct's. 

Fost.  (N.  H.) Foster's  New  Hampshire  Supreme  Court. 

Ga.  (Ga.) Georgia  Supreme  Court  Reports. 

Ga.  Sup.  (Ga.) Georgia  Supplement  to  Vol.  33. 

Ga.  Dec.  (Ga.) Georgia  Decisions  of  Georgia  Sup.  Reports. 

Gall.  (U.  S.) Gallison's  U.  S.  First  Circuit  Court  Reports. 

Gill,  (Md.) Gill's  Maryland  Court  of  Appeals. 

Gill  &  J.  (Md.) Gill  &  Johnson's  Md.  Court  of  Appeals. 

Gilm.  (111.) Gilman's  111.  Supreme  Court  Reports. 

Gilm.  (Va.) Gilmer,  Virginia  Court  of  Appeal. 

Gilp.  (U.  S.) Gilpin's  U.  S.  Eastern  District  Ct.  of  Penn. 

Grant,  Cas.  (Pa.)      ......  Grant's  Cases,  Penn.  Supreme  Court. 

Gratt.  (Va.) Grattan's  Virginia  Court  of  Appeals. 

Gray,  (Mass.)      .......  Gray's  Mass.  Supreme  Court  Reports. 

Green,  Ch.  (N.  J.)    .     .     .     .     .     .  Green's  New  Jersey  Court  of  Chancery  and  Court 

of  Errors  and  Appeals. 

Green,  C.  E.  (N.  J.) Greene's  N.  J.  Ct.  of  Chancery  of  Errors  and  Ap- 
peals. 

Greene,  (Iowa)  .     , Green's  Iowa  Supreme  Court  Reports. 

Greenl.  (Me.) Greenleaf 's  Maine  Supreme  Court  Reports. 

Hall,  (N.  Y.) Hall's  New  York  Superior  Court  Reports. 

Hals.  Ch.  (N.  J.) Halsted's  N.  J.  Ct.  of  Chancery,  Errors  and  Appeals. 

Hals.  (N.  J.) Halsted's  N.  J.  Ct.  of  Chancery,  Errors  and  Appeals. 

Handy,  (Ohio) Handy's  Cincinnati  Superior  Court. 

Har.  &  G.  (Md.) Harris  and  Gill's  Maryland  Court  of  Appeals. 

Har.  &  J.  (Md.) Harris  &  Johnson's  Maryland  Court  of  Appeals. 

Har.  &  Me.  (Md.) Harris  and  McHenry's  Provincial  Ct.  and  Court 

of  Appeals. 

Hard.  (Ky.) Hardin's  Kentucky  Court  of  Appeals. 

Harp.  (S.  C.) Harper's  S.  C.  Constitutional  Court. 


INDEX   OF   ABBREVIATIONS.  597 

Harp.  Eq.  (S.  C.) Harper's  S.  C.  Ct.  of  Appeals  in  Equity. 

Harr.  S.  A.  (Del.) Harrington's  Del.  Superior  Court  and  Court  of 

Appeals. 

Harr.  Ch.  (Mich.) Harrington's  Mich.  Court  of  Chancery. 

Harr.  (N.  J.)    .     .     • Harrison's  N.  J.  Supreme  Ct.  Reports. 

Hawks,  (N.  C.) Hawks'  North  Carolina  Supreme  Ct.  Reports. 

Hayw.  (N.  C.) Haywood's  N.  C.  Superior  Ct.  of  Law  and  Equity. 

Hayw.  (Tenn.) Haywood's  Tenn.  Sup.  Ct.  of  Errors  and  Appeals. 

Head,  (Tenn.)      .......  Head's  Tenn.  Supreme  Court  Reports. 

Heish.  (Tenn.) Heishell's  Tenn.  Superior  Court  Reports. 

Hempst.  (U.  S.) Hempsted's  U.  S.  Courts  and  Territorial  Courts,  in 

Arkansas  (old  circuit). 

Hen.  &  M.  (Va.) Hening  and  Munford's  Virginia  Court  of  Appeals. 

Hill,  (S.  C.) Hill's  S.  C.  Court  of  Appeals,  3  Vols.  in  2. 

Hill,  (N.  Y.) Hill's  New  York  Supreme  Court  and  Ct.  of  Ap- 
peals. 

Hill,  Ch.  (S.  C.) Hill's  South  Carolina  Court  of  Appeals  in  Chan- 
cery. 

Hill  &  D.  Supp.  (N.  Y.)  .  .  .  .  Lalor's  Supplement  to  Hill  and  Denio's  N.  Y.  Su- 
preme Court  and  Court  of  Appeals. 

Hilt.  (N.  Y.) Hilton's  New  York  Ct.  of  Common  Pleas. 

Hoff.  La.  Cas.  (U.  S.) Hoffman's  Land  Cases  U.  S.  Dist.  Ct.  Northern 

Dist.  of  California. 

Hoffm.  Ch.  (N.  Y.) Hoffman's  N.  Y.  Assistant  Vice  Chancellor's 

Court. 

Holmes,  (U.  S.) Holmes'  U.  S.  First  District  Circuit  Court. 

Hopk.  Ch.  (N.  Y.) Hopkins'  N.  Y.  Court  of  Chancery. 

Houst.  (Del.) Houston's  Criminal  Reports  of  Delaware. 

Houst.  (Del.) Houston's  Del.  Superior  Ct.  and  Court  of  Errors 

and  Appeals. 

How.  (U.  S.) Howard's  U.  S.  Supreme  Court  Reports. 

How.  Ap.  Cas.  (N.  Y.) Howard's  Appeal  Cases  New  York  Court. 

How.  Pr.  (N.  Y.) Howard's  Practice  N.  Y.  Various  Courts. 

Hughes,  (Ky.) Hughes'  Kentucky  Reports. 

Hughes,  (U.  S.) Hughes'  U.  S.  IV.  Circuit  (old). 

Humph.  (Tenn.) Humphrey's  Tenn.  Supreme  Court. 

Hun,  (N.  Y.) Hun's  N.  Y.  Supreme  Court  Reports. 

Idaho,  T.  (Idaho) Idaho  Territorial  Supreme  Ct.  Reports. 

111.  (111.) Illinois  Supreme  Court  Reports. 

111.  Br.  (111.) Bresse's  Illinois  Sup.  Court  Reports. 

111.  Gilm.  (111.) Oilman's  Illinois  Sup.  Ct.  Reports. 

111.  Peck,  (111.) Peck's  Illinois  Sup.  Ct.  Reports. 

111.  Scam.  (111.) Scammon's  111.  Supreme  Ct.  Reports. 

Ind.  (Ind.) Indiana  Supreme  Court  Reports. 

Iowa,  (la.) Iowa  Supreme  Court  Reports. 

Ired.  L.  (N.  C.) Iredell's  N.  Carolina  Sup.  Ct.  at  Law. 

Ired.  Eq.  (N.  C.) .  Iredell's  N.  C.  Supreme  £t-  in  Equity. 

Jeff.  (Va.) Jefferson's  Virginia  General  Court  Reports. 

J.  J.  Marsh.  (Ky.) J.  J.  Marshall's  Ky.  Court  of  Appeals. 

Johns.  (N.  Y.)  .  .  ,  • Johnson's  N.  Y.  Supreme  Court  and  Court  of  Er- 
rors, Reports. 

Johns.  Cas.  (N.  Y.) Johnson's  Cases  N.  Y.  Supreme  Court  and  Court 

of  Errors. 

Johns.  Ch.  (N.  Y.) Johnson's  N.  Y.  Court  of  Chancery  Reports. 

Jones,  Eq.  (N.  C.) Jones'  North  Carolina  Court  in  Equity. 

Jones,  L.  (N.  C.) Jones'  N.  C.  Supreme  Court  at  Law. 

Kan.  (Kan.) Kansas  Supreme  Court  Reports. 

Keyes,  (N.  Y.) Keyes'  Reports  of  Court  of  Appeals. 

Kirby,  (Conn.) Kirby's  Connecticut  Superior  Court. 


;598  INDEX  OP  ABBREVIATIONS. 

La.  (La.) Louisiana  Reports. 

La.  Ann.  (La.) Louisiana  Annual  Supreme  Court. 

Lalor's  Sup.  (N.  Y.) Lalor's  Supplement  to  Hill  &  Deino's  N.  Y.  Re- 
ports. 

Lan.  (N.  Y.) Lansing's  New  York  Supreme  Court. 

Law,  Reps.  (N.  C.) Carolina  Law  Repository  Sup.  Court. 

Lea,  (Tenn.) Lea's  Tennessee  Reports. 

Leigh,  (Va.) Leigh's  Virginia  Ct.  of  Appeals  and  General 

Court. 

Legal  Inst.  (Pa.) Legal  Institute  Pa.  Reports,  Various  Courts. 

Legal  Gaz.  (Pa.) Legal  Gazette  Reports  of  Various  Courts. 

Litt.  (Ky.) Littell's  Kentucky  Court  of  Appeals. 

Litt's  Sel.  Cas.  (Ky.)     ......  Little's  Select  Cases,  Ky.  Court  of  Appeals. 

Lock.  Rev.  Cas Lockwood's  Reversed  Cases. 

Low.  (U.  S.) Lowell  U.  S.  Dist.  Court  of  Mass. 

Mar.  or  A.  K.  Mar.  (Ky.)     .    .    .    .  A.  K.  Marshall's  Rep's  of  Ky.  Court  of  Appeals. 
Mr.  J.  J.  or  J.  J.  Mar.  (Ky.)      .    .    .  J.  J.  Marshall's  Reports  of  Marshall's  Decisions,. 

U.  S.  Circuit  Court. 

Mart.  L.  (La.) Martin's  Reports,  La.  Supreme  Court. 

Mart.  N.  S.  (La.) Martin's  Reports,  New  Edition,  Supreme  Ct. 

Mart.  V.  R.  (N.  C.) Martin's  North  Caro.  Various  Reports. 

Mart.  &  Y.  (Tenn.) Martin  &  Yerger's  Tenn.  Supreme  Court. 

Mas.  (C.  Ct.)  (U.  S.) Mason's  U.  S.  First  Circuit  Court. 

Mass Massachusetts  Supreme  Court. 

Me  All.  (D.  C.) McAllister's  U.  S.  District  Ct.  of  California. 

McArthor,  (U.  S.) McArthur's  Reports  of  District  of  Columbia. 

McCahon,  (U.  S.) McCahon's  U.  S.  District  Ct.  of  Kansas. 

McCart.  (N.  J.) McCarter's  N.  J.  Court  of  Chancery  and  Court  of 

Errors  and  Appeals. 
McCord,  (S.  C.) McCords,  South  Carolina  Constitutional   Ct.  and 

Court  of  Appeals. 

McCord,  Ch.  (S.  C.) McCord's  S.  Caro.  Court  of  Appeals  in  Chancery. 

McCrary,  (U.  S.) McCrary's  U.  S.  VIII.  Circuit  (new). 

McLean,  (U.  S.) McLean's  U.  S.  VII.  Circuit  Court. 

Me  Mull.  (S.  C.) McMullan's  S.  Caro.  Court  of  Appeals. 

McMull.  Eq.  (S.  C.) McMullan's  S.  C.  Ct.  of  Appeals  in  Equity. 

Mel.  (Md.) Maryland  Court  of  Appeals. 

Md.  Ch.  (Md.) Maryland  Chancery  Decisions  High  Court  Chan- 
cery. 

Me.  (Me.) Maine  Supreme  Court. 

Me.  Fairf.  (Me.) ,  Fairfield's  Maine  Supreme  Court. 

Me.  Greenl.  (Me.) GreenleaPs  Maine  Supreme  Court. 

Meigs,  S.  C.  (Tenn.) Meig's  Tennessee  Supreme  Court 

Mete.  (Ky.) Metcalfe's  Ky.  Court  of  Appeals. 

Mete.  (Mass.) Metcalfs  Mass.  Supreme  Court. 

Mich.  S.  C.  (Mich.) Michigan  Supreme  Court  Reports. 

Mich.  N.  P.  (Mich.) Michigan  Cases  at  Nisi  Prius. 

Miles,  (Pa.) Miles'  Philadelphia  District  Court. 

Mill,  Const.  (S.  C.) Mill's  S.  C.  Constitutional  Court. 

Mill.  Dec.  (U.  S.) Miller's  Decisions  by  Woolworth  VIII.  Circuit  of 

U.  S.  Court. 

Miller,  (U.  S.) Miller's  U.  S.  Supreme  Ct.  Reports. 

Minn.  (Minn.) Minnesota  Supreme  Court  Reports. 

Minor,  (Ala.) Minor's  Alabama  Supreme  Court. 

Miss.  C.  H.  (Miss.) Mississippi  High  Court  of  Errors  and  Appeals. 

Miss.  How.  (Miss.) Howard's  Miss.  High  Ct.  of  Errors  and  Appeals. 

Miss.  Smed.  &  M.  (Miss.)   ....  Smede  &  Marshall's  Miss.  High  Ct.  of  Errors  and 

Appeals. 

Miss.  Walk.  (Miss.) Walker's  Miss.  Supreme  Court  Reports. 

Mo.  S.  Ct.  (Mo.) Missouri  Supreme  Court  Reports. 

Mo.  App.  (Mo.) Missouri  Court  of  Appeals  Reports. 


INDEX  OF   ABBREVIATIONS.  599 

Mon.  or  T.  B.  Mon.  (Ky.) .     .     .     .  T.  B.  Monroe's  Ky.  Court  of  Appeals. 
Mon.  or  B.  Mon.  (Ky.)     .     .     .     .   B.  Monroe's  Ky.  Court  of  Appeals. 

Mon.  Ter.  (Mon.) Montana  Territory  Sup.  Court. 

Morr.  (Iowa) •     •     Morris'  Iowa  Supreme  Court. 

Morr.  St.   Cas.  (Miss.)     ....     Morris'  Criminal  State  Cases. 

Munf.  (Va.) Munfords' Virginia  Ct.  of  Appeals. 

Murph.  (N.  C.) Murphy's  North  Caro.  Supreme  Court. 

N.  C.  Term.  (N.  C.) North  Carolina  Supreme  Court. 

N.  C.   Repos.  (N.  C.)     .     .     .     .      North  Carolina  Repository. 

N.  C.  Term.  (N.  C.) North  Carolina  Sup.  Ct.  of  Law  &  Equity. 

Neb.  (Neb.) Nebraska  Court  Reports. 

Nev.  (Nev.) Nevada  Supreme  Court  Reports. 

Newb.  Adm.  (U.  S.) Newberry's  Admiralty  U.  S.  Various  District 

Courts. 

N.  H.  (N.  H.) New  Hampshire  Superior  Court. 

N.  H.  Fost.  (N.  H.) New  Hampshire  Superior  Court. 

N.  H.  Smith,  (N.  H.) Smith's  New  Hampshire  Superior  Court. 

N.  J.  Eq.  (N.  J.) New  Jersey  Courts  of  Chancery,  Prerogative,  Er- 
rors and  Appeals. 

N.  J.  L.  (N.  J.) New  Jersey  Law  Court  of  Errors  and  Appeals. 

Nott  &  McC.  (S.  C.) Nott  &  McCord's  S.  C.  Constitutional  Court. 

N.  Y.  App.  (N.  Y.) New  York  Court  of  Appeals. 

N.  Y.  Comst Comstock's  N.  Y.  Court  of  Appeals. 

N.  Y.  Kern.     . Kernan's  N.  Y.  Court  of  Appeals. 

N.  Y.  Seld Selden's  N.  Y.  Court  of  Appeals. 

N.  Y.  Sup.  Ct New  York  Superior  Court  Reports. 

N.  Y.  Super.  Ct New  York  Supreme  Court  Reports. 

N.  Y.  Surr New  York  Surrogate  Court  Reports. 

Ohio  St Ohio  State  Supreme  Court  Reports. 

Olc.  Adm.  (U.  S.) Olcott's  Admiralty  Dist.  Court. 

Oreg.  (Oreg.) Oregon  Supreme  Court  Reports. 

Overt.  (Tenn.) Overton's  Tenn.  Rep's  Various  Courts. 

Pa.  S.  Ct.  (Perin.) Pennsylvania  Court  Reports. 

Pa.  Le.  G.  Rep.  (Penn.)      .     .     .     Pennsylvania  Legal  Gazette. 
Paige  Ch.  (N.  Y.)    .     .  .  .        .     .     Paige's  N.  Y.  Chancery  Reports. 

Paine  C.  Ct.  (U.  S.) Second  Circuit  Reports. 

Park.  Cr.  (N.  Y.) Parker's  Criminal  Reports,  Various  Courts. 

Pars.  Eq.  Cas.  (Penn.)     ....      Parsons   Court  of  Common   Pleas  First   Judicial 

District  in  Equity  Select. 

P.  St.  (Penn.) Penn.  State  Reports  of  Supreme  Court. 

Patt.  &  H.  (Va.) Pattonjr.  &  Heath,  Special  Ct.  of  Appeals. 

Pear.  (Penn.) Pearson's  Penn.  Reports,  Various  Cts. 

Peck,  (111.) Peck's  111.  Supreme  Court  Reports. 

Peck,  (Tenn.) Peck's  Tenn.  Supreme  Court  Reports. 

Pen.  &  W.  (Penn.) Penrose  &  Watts  Sup.  Court  Reports. 

Pet.  (U.  S.) Peter's  U.  S.  Supreme  Court  Reports. 

Pet.  Adm.  (U.  S.) Peter's  Admiralty  Decision   Eastern    District    of 

Penn. 

Pet.  C.  Ct.  (U.  S.) Peter's  U.  S.  Third  Circuit  Court. 

Phill.  Eq.  (N.  C.) Phillip's  North  Carolina  Sup.  Ct.  in  Equity. 

Phill.  L.  (N.C.) Phillip's  N.  C.  Supreme  Ct.  Rept.  at  Law. 

Phil.  L.  Inst.  (Pa.) Philadelphia  Legal  Inst,  Various  Courts. 

Pick.  S.  Ct.  (Mass.) Pickering's  Mass.  Supreme  Court. 

Pin.  S.  Ct.    (Wis.) Pinney's  Wisconsin  Supreme  Ct. 

Pitts.  L.  J.  (Pa.) Pittsburg  Legal  Journal,  Various  Courts. 

Port.  S.  Ct.  (Ala.) Porter's  Alabama  Supreme  Court. 

Pr.  Dec.  (Ky.) Sneed's  Kentucky  Printed  Decisions. 

Pt.  R Patents  Reports. 


600  INDEX   OF   ABBREVIATIONS. 

Quincy,   (Mass.) Quincy's  Massachusetts  Reports. 

Rand.  Appls.  (Va.) RandolPs  Virginia  Court  of  Appeals. 

Rawle,  (Pa.) Ralwe's  Penn.  Supreme  Court. 

Redf.  Sur.  (N.  Y.) Redfield's  Surrogate  Court. 

R.  I.   (R.  I.) Rhode  Island  Supreme  Court. 

Rice,  L.  (S.  C.) Rice's  S.  Ca.  Court  of  Appeals  and  of  Errors  and 

Law. 
Rice,   Ch.  (S.  C.)  •    •    • Rice's   S.   C.    Courts  of  Appeal   and    Errors    in 

Equity. 

Rich.  L.  &  Eq.  (S.  C.) Richardson's  Reports  in  Law  and  Equity. 

Rich.  Ch.    (S.  C.) Richardson's   Courts   of  Appeals   and   Errors   in 

Chancery. 
Rich.  N.  C.  (S.  C.) Richardson's  New   Serious.     (Distinction  of  Law 

and  Equity  has  been  abolished). 

Riley,  (S.  C.) Rileys"  S.  C.  Court  of  Appeals. 

Riley,  L.  (S.  C.) Riley's  Court  of  Appeals  in  Law. 

R.    M.  Charlt.  (Ga.) R.  M.  Charlton's  Ga.  Superior  Court. 

Rob.  (La.) Robinson's  La.  Supreme  Court. 

Rob.  (Va.) Robinson's  Va.  General  Court. 

Robb,  Pt.  Cas.  (U.  S.) Robb's  Patent  Cases  Supreme  and  Circuit  Courts. 

Bobt.  (N.  Y.) Robertson's  N.  Y.  Supreme  Court. 

Rog.  Rec.  (N.  Y.)  . Roger's  New  York  City  Hall  Recorder. 

Root,  (Conn.) Root's  Conn.  Court  of  Errors. 

Rowell,  Vt 

Sandf.   (N.  Y.) Sandford's  N.  Y.  Supreme  Court. 

Sandf.  Ch.  (N.  Y.) Sandford's  N.  Y.  Court  of  Chancery. 

Saw.  C.  Ct.  (U.  S.) Sawyer's  U.  S.  IX.  Circuit  Court. 

Sax.  Ch.  (N.  J.) Saxton's  New  Jersey  Court  of  Chancery. 

Scam.  (111.) Scammon's  111.  Supreme  Court. 

Sel.    Cas Select  Cases. 

Serg.  &  R.  (Pa.) Sergeant  &  Rowle's  Penn.  Supreme  Court. 

Smed.  &  M.   (Miss.) Smedes  &  Marshall's  Superior  Court  of  Chancery. 

Smed.  &  M.  L.  (Miss.) Smedes  &  Marshall's  Superior  Court  in  Law. 

Smith,  E.  D.  (N.  Y.) E.  D.  Smith's,  N.  Y.  Court  of  Common  Pleas. 

Smith,  (Ind.) Smith's  Indiana  Supreme  Court. 

Smith,    Cond.  (Ala.) Smith's  Condensed  Ala.  Reports. 

Sneed,    (Ky.)  . Sneed's  Decisions  of  Court  of  Appeal. 

Sneed,  (Tenn.) Sneed's  Tenn.  Supreme  Court. 

South.  (N.  J.) Southard's  N.  J.  Supreme  Court. 

Spears,  (S.  C.) Spear's  S.  C.  Ct.  of  Appeals  and  Errors. 

Spears,  Eq.  (S.  C.) Spear's  S.  C.  Chancery  Reports. 

Spen.   (N.  J.) Spencer's  N.  J.  Supreme  Court. 

Sprague,    Dist.  (U.  S.) Sprague's  Decisions  U.  S.  District  Ct.  of  Mass. 

Stew.    (Ala.) Stewart's  Ala.  Supreme  Court  Reports. 

Stew.  &  P.  (Ala.) Stewart  &  Porter's  Ala.  Supreme  Court. 

Stock.  (N.  J.) Stockton's  Courts  of  Chancery,  Errors  and  Appeals. 

Story,    C.  Ct.  (U.  S.) Story's  U.  S.  First  Circuit  Court. 

Strobh.   (S.  C.) Strobhart's  S.  C.  Court  of  Appeals  and  Errors  at 

Law. 
Strobh.  Eq.  (S.  C.) Strobhart's  S.  C.  Court  of  Appeals  and  Errors  and 

Equity. 
Sumn.  C.  Ct.  (U.  S.)  .......  Sumner's  U.  S.  First  Circuit  Court. 

Sup.    Ct Supreme  Court  Reports. 

Swan,  (Tenn.) Swan's  Tenn.  Supreme  Court  Reports. 

Sweeney,  (N.  Y.) Sweeney's  N.  Y.  City  Superior  Court  Reports. 

Taney,  Dec.  (U.  S.) Taney's  Decisions  IV.  U.  S.  Circuit  Court. 

Tapp.  (Ohio) Tappan's  Ohio  Courts  of  Common  Pleas. 

Tayl.  (N.  C.) Taylor's    N.    C.    Superior    Courts  of    Law   and 

Equity. 


INDEX  OF   ABBREVIATIONS.  601 

Tenn.  (Tenn.) Tennessee  General  Reports. 

Tenn.  Cooper.  (Tenn.) Tennessee  Chancery  Reports. 

Tenn.  (Tenn.) Tennessee  Reports. 

Term.   Rpts.  (N.  C.) Taylor's  N.  C.  Supreme  Court  Term  Reports. 

Tex.  (Tex.) Texas  Supreme  Court  Reports. 

Tex.  Ct.  App.  (Tex.) Texas  Court  of  Appeals  Reports. 

Thach.  Cr.  Cas.  (Mass.) Thacher's  Mass.  Criminal  Cases,  Boston. 

Thomp.  &  C.  (N.  C.) Thompson  &  Cook's  N.  Y.  Supreme  Court. 

Thomp.  Cas.  (Tenn.) Thompson's  Tennessee  Cases. 

Treadw.  Const.  (S.  C.) Treadway's  S.  C.  Constitutional  Court. 

Tuck.  Sur.  (N.  Y.) Tucker's  N.  Y.  Surrogate's  Court. 

T.    U.  P.  Charlt.  (Ga.) T.  U.  P.  Charlton's  Ga.  Supreme  Court. 

Tyler,  (Vt.) Tyler's  Vermont  Supreme  Court  Reports. 

Utah  Ter.  (Ut.  T.) Utah  Territory  Court  Reports. 

United  States Supreme  Court  Reports. 

Va.  Cas.  (Va.) Virginia  Cases  of  General  Court. 

Van  Ness,   (U.S.) Van  Ness' Prize  Cases  N.  Y.  District  Court. 

Vroom,  (N.  J.) Vroom's  New  Jersey  Sup,  Court  Reports. 

Vt.  (Vt. ) Vermont  Supreme  Court  Reports. 

Walk.   Ch.  (Mich.) Walker's  Michigan  High  Court  of  Chancery. 

Wall.  (U.  S.  C.  Ct.)     .     .     .     •     .     Wallace's  C.  Ct.  Third  District. 

Wall.    (U.  S.  S.  C.) Wallace's  United  States  Supreme  Court  Reports. 

Wall.  Jr.  (U.  S.) Wallace  Jr's.  Third  District  Circuit  Court. 

Ware,  (U.  S.) Ware's  District  Court  of  Maine. 

Ware,  2.  ed.  (U.  S.) Ware's   Second  Edition  District  Ct.  of  Maine,  in- 
cluding Davies  in  2d  Volume. 

Wash.  (U.  S.) Washington's  Third  District  Court. 

Wash.  T.  (W.  T.) Washington  Territory  Supreme  Court. 

Wash.  (Va.) Washington's  Virginia  Court  of  Appeals. 

Watts,  (Penn.) Watt's  Pennsylvania  Supreme  Court. 

Watts  &  S.  (Penn.) Watts  &  Sargeant's  Penn.  Supreme  Court. 

Wend.  (N.  Y.) Wendell's  New  York  Supreme  Court. 

Wheat.  (U.  S.) Wheaton's  U.  S.  Supreme  Court. 

Whart.  (Penn.) Wharton's  Penn.  Supreme  Court, 

Wheel.  (N.  Y.) Wheeler's  New  York  Criminal  Reports. 

Whit.  Pt.  R.  (U.  S.)    .......  Whitman's  Patent  Rep.  of  United  States  Cts. 

Wil.  (Ind.) Wilson's  Indiana  Superior  Court. 

Will.  Cit.  (Mass.) William's  Citations  from  Quincy  to  122  Mass. 

Wins.  Eq.  (N.  C.) Winston's  North  Calo.  Supreme  Court. 

Wis.  (State) Wisconsin  Supreme  Court  Reports. 

Wood,  (U.  S.) Wood's  U.  S.  V.  Circuit  Court  Reports. 

Woodb.  &  M.  (U.  S.) Woodbury  &  Minot's  First  Circuit  Ct.  Reports. 

Wright,  (Ohio) Wright's  Ohio  Sup.  Ct.  at  Law  apd  Equity. 

W.  Va.  (State) West  Virginia  Sup.  Court  and  Court  of  Errors. 

Wythe,  (Va.) Wythe's  Virginia  Chancery  Reports. 

Yates,  Sel.  Cas.  (N.  Y.) Yates'  N.  Y.  Supreme  Ct.  and  Ct.  of  Errors. 

Yeates,  (Penn.) Yeates'  Penn.  Supreme  Court. 

Yerg.  (Tenn.) Verger's  Tennessee  Sup.  Court  Reports. 

Zab.  (N.  Y.) Zabiskie,  N.  J.  Supreme  and  Court  of  Errors. 

ABBREVIATIONS  USED  HEREIN  IN  REFERENCE  TO  ENGLISH  REPORTS. 
Ad.  &  E Adolphus  &  Ellis'  Reports.     K.  B. 

B.  &  A Barnewall  &  Anderson's  Reports.  K.  B. 

B.  &  Ad Barnewell  &  Adolphus'  Reports.  K.  B. 

B.  &  C Barnewell  &  Cresswell's  Reports.  K.  B. 

Barn.  &  C Barnewell  &  Cresswell's  Reports.  K.  B. 


602 


INDEX  OF   ABBREVIATIONS. 


B.  R King's  Bench  Reports. 

Bing Bingham's  Reports,  Common  Pleas. 

Beav Beavan's  Reports,  Rolls  Court 

Bos.  &  Pul Bosanquet  &  Puller's  Reports.     C.  P. 

Bos.  &  Pul.  N.  R Bosanquet  &  Puller's  New  Reports.     C.  P. 

Burr Burrow's  Reports.     K.  B. 

C.  B.  ...,•„ Common  Bench  Reports. 

C.  C.  R Common  Cases,  Reserved. 

Ch Chancery  Reports. 

Camp.  N.  P. Campbell's  Reports,  Nisi  Prius. 

Gary, Gary's  Chancery  Reports. 

C.  P Common  Pleas  Reports. 

C.  L.  R Common  Law  Reports. 

Cl.  &  Fin Clarke  &  Finnelly's  Rpts.  House  of  Lords. 

C.  P.  D Common  Pleas  Division  Reports. 

Co Coke's  Reports.     K.  B. 

De  G.  F.  &  J De  Gex,  Fisher  &  Jones  Chancery  Reports. 

De.  G.  M.  &  G De  Gex,  Macnaghton  &  Gordon's  Ch.  R. 

De  G.  &  Sm De  Gex  &  Smale's  Chancery  Reports.  . 

Dunlop  or  D Dunlop,  Bell  &  Murray's  Court  of  Session  Rpts. 

El.  &  El Ellis  &  Ellis'  Queen's  Bench  Reports. 

East East's  Reports  of  King's  Bench. 

H.  L House  of  Lords  Reports. 

Hare, Hare's  Chancery  Reports. 

K.  B King's  Bench  Reports. 

L.  J Lower  Journal  Reports  in  all  Courts. 

Law  Rep.  C.  P.  D.     .     .     ,     .     .     .Common  Pleas  Division  Reports. 

L.  R Law  Review  Reports  in  all  Courts. 

Law  Rept.  Ap.  Ca Appeal  Cases  Reported. 

L.  T Law  Times  Reports  in  all  cases. 

Law  Rep.  Ch.  D Chancery  Division  Reports. 

L.  T.  N.  S Law  Times  Reports,  New  Cases. 

Ld.  Raym Lord  Raymon's  Reports.     K.  B. 

Macl.  &  R Maclean  &  Robinson's  Scotch  Reports. 

Man.  &  Gr Manning  &  Granger's  Reports.     C.  P. 

M.  &  S Maule  &  Selwyn's  Reports.     K.  B. 

Moo.  &  R Moody  &  Robinson's  Chancery  Reports. 

Myl.  &  Cr Mylne  &  Craig's  Chancery  Reports. 

N.  P Nisi  Prius  Reports. 

N.  R New  Reports,  Bosanquet  &  Puller.     C.  P. 

N.  S.  .  .    , New  Series  Reports. 

Q.  B Queen's  Bench  Reports. 

Ry.  &  M Ryan  &  Moody's  Nisi  Prius  Reports. 

T.  R Term  Reports,  Durnford  &  East.     K.  B. 

Taun Taunton's  Reports.     C.  P. 

Ves.  Sen Vesey  Sen.  Chancery  Reports. 

Ves.  Jr Vesey  Jr.  Chancery  Reports. 

W.  R Weekly  Reports  in  all  courts. 


INDEX  OF  ABBREVIATIONS.  603 

ABBREVIATIONS  USED  IN  REFERENCE  TO  CANADIAN  REPORTS. 

Ca Canada  Reports. 

Grant  Ch Upper  Canada,  Ontario  Chancery  Reports. 

K.  B.     .    . King's  Bench  Reports. 

Low.  Ca Lower  Canada  Reports. 

Low.  Ca.  J.     ........    Lower  Canada  Jurist. 

Low.  Ca.  L.  J .    Lower  Canada  Law  Journal. 

Ont Ontario  Reports. 

Pugs.  N.  B.    ........    Pugsley's  New  Brunswick  Reports. 

Q.  B.  N.  S Queen's  Bench  Reports,  New  Series. 

R.  de  Leg Revue  de  Legislature  Jurisprudence. 

Sp.  Ct •    .    •    .     .  Supreme  Court  Dominion  Reports. 

Up.  Ca.  Ch Upper  Canada  Chancery  Reports. 

Up.  Ca.  C.  P.     .      .      .     .     ,     .     .  Upper  Canada  Chancery  Reports. 
Up.  Ca.  N.  S Upper  Canada  New  Series.     Q.  B. 

APPEAL  CASES. 
Up.  Ca Appeal  Cases,  Upper  Canada. 

Law  Rep.  Q.  B.  D Queen's  Bench  Division  Repts. 

Law  Rep.  C.  P.  D Common  Pleas  Division  Repts. 

Law  Rep.  Ex.  D.     ......  Exchequer  Divisions  Repts. 

Law  Rep.  Prob.  D.     .....    Probate  Division  Reports. 

ABBREVIATIONS  USED  IN  REFERENCE  TO  IRISH  REPORTS. 
I.  R.  C.  L..     .......   Irish  Reports,  Common  Law  Cases. 

Ir.  Law  &  Ch.    .......  Irish  Law  &  Equity  Repts.  New  Series. 


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